STATE OF NORTH CAROLINA · Web viewVolume Number Witness Affiliation Pages Volume I – August 30...

STATE OF NORTH CAROLINA IN THE OFFICE OFADMINISTRATIVE HEARINGS

COUNTY OF SAMPSON 05 OSP 0993______________________________________________________________________________RUSSELL LEE

Petitioner,

vs.

SAMPSON COUNTY and SAMPSON COUNTY DEPARTMENT OF SOCIAL SERVICES,

Respondents.

))))))))))))

RECOMMENDED DECISION

This contested case was heard before the undersigned Chief Administrative Law Judge

on August 30-31, September 6-8, October 23-26, and November 27-29, 2006 in the Harnett

County Courthouse, Lillington, North Carolina.

The parties to this contested case are the Petitioner Russell Lee (hereinafter called

“Petitioner”) and the Respondents Sampson County and Sampson County Department of Social

Services (hereinafter called “Respondent”).

Petitioner was employed by the Respondent from July 1, 1997 to January 13, 2005 as

Office Manager of the Child Support Unit. He was classified as a Child Support Supervisor II.

On November 23, 2004, Petitioner was placed on investigatory placement with pay pending the

outcome of an investigation regarding several complaints against him. As a result of that

investigation, Petitioner was dismissed from his employment for unacceptable personal conduct

pursuant to N.C. Gen. Stat. § 126-35, 25 N.C.A.C. 1I.2301 and 25 N.C.A.C. 1I.2304 on January

13, 2005.

On January 18, 2005, Petitioner initiated Step One of the Grievance and Adverse Action

Appeal Procedure set out in Article VIII, Section 3 of the Respondent’s Personnel Resolution

(“Internal Appeal Procedure”). Petitioner pursued and exhausted all steps of that Internal Appeal

Procedure, and his dismissal was upheld on May 26, 2005. On June 18, 2005, Petitioner filed a

petition for a contested case hearing. In his petition, Petitioner alleged he was discharged

without just cause, suspended without just cause, suspended and discharged in retaliation for

opposition to alleged discrimination, and suspended and discharged due to race and gender

discrimination.

Respondent filed a Motion to Dismiss on October 17, 2005, moving to dismiss

Petitioner’s claims for suspension without just cause, suspension and discharge in retaliation for

opposition to discrimination, and suspension and discharge due to race and gender. Petitioner

filed a Response on November 14, 2005. On July 5, 2006, Petitioner moved to amend his

petition for contested case, but on July 19, 2006, during a hearing on then pending motions

moved to withdraw his Motion to Amend. The motion to withdraw was granted on the record

and memorialized in an Order dated August 14, 2006.

On August 17, 2006, the undersigned entered an Order dismissing Petitioner’s claims for

suspension without just cause, suspension and discharge in retaliation for opposition to

discrimination, and suspension and discharge due to race and gender discrimination, for lack of

subject matter jurisdiction pursuant to N.C. Civ. P. Rule 12(b)(1) and for failure to state a claim

upon which relief may be granted pursuant to N.C. Civ. P. Rule 12(b)(6). The Order dismissed

Petitioner’s case in its entirety against Sarah Bradshaw individually and the Sampson County

Board of Social Services, pursuant to N.C. R. Civ. P. 12(b)(2) for lack of jurisdiction.

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Lee filed a Motion for Reconsideration and a Motion for Leave to Amend Petitioner’s

Petition on August 16, 2006.Petitioner also filed an Amended Prehearing Statement on August

16. On August 17, 2006, Respondent filed a Response Opposing Petitioner’s Motion for

Reconsideration, Response Opposing Petitioner’s Motion to Amend Petition, and Motion to

Strike Petitioner’s Amended Prehearing Statement. On August 21, 2006, Petitioner filed a

Motion in Limine and on August 29, 2006, Respondent filed a Response Opposing Petitioner’s

Motion in Limine.

During the first day of the contested case hearing, August 30, 2006, the undersigned

made rulings on the record on all pending motions, effective immediately. The rulings are

memorialized in two Orders – one entered on September 21, 2006 and the other entered on

December 18, 2006. The Order entered on September 21, 2006 provides that Petitioner’s motion

to amend his Petition is denied; considers Petitioner’s Amended Prehearing Statement to be a

Motion for Leave to Amend Petitioner’s Prehearing Statement and denies that motion; rules that

Respondent’s Motion to Strike Petitioner’s Amended Prehearing Statement is, therefore, moot;

and denies Petitioner’s Motion in Limine. The Order entered on December 18, 2006 denies

Petitioner’s Motion for Reconsideration of the undersigned’s Order dated August 17, 2006 and

supplements that order.

Following the hearing of this contested case, the undersigned entered an Order granting

the parties up to and including March 19, 2007 to submit proposed findings of fact and

conclusions of law. On February 20, 2007, Respondent filed a motion to expand the time by

which the submission must be made. Petitioner filed a response on February 21, 2007 and on

March 1, 2007, the undersigned entered an Order enlarging the time for submitting proposed

findings of fact and conclusions of law up to and including April 9, 2007.

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APPEARANCES

James H. Locus For Petitioner Law Offices of James H. LocusFayetteville, North Carolina

Thomas R. West For Respondents David WoodardPoyner & Spruill LLPRaleigh, North Carolina

I. APPLICABLE LAW

The procedural statutory law applicable to this contested case is the North Carolina

Administrative Procedure Act, N.C. Gen. Stat. § 150B-1 et seq.

The substantive statutory law applicable to this contested case hearing is N.C. Gen. Stat.

§§ 108A-14; 126-5(a)(2)(b), 126-34 et.seq.(Article 8).

The administrative rules applicable to this contested case hearing are 25 N.C.A.C.

Subchapter 1A, .0003, .0005; Subchapter 1I.Section .2300.

II. ISSUE

Whether Respondent’s Director had just cause to terminate Petitioner from his

employment as Respondent’s Child Support Office Manager for unacceptable personal conduct

on January 13, 2005.

III. BURDEN OF PROOF

Respondent has the burden of proof by the greater weight of the evidence.

IV. RECORD OF THE CASE

A. Testimony Received at the Hearing

At the hearing, testimony was received from the following witnesses, with their business

affiliation noted:

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Volume Number Witness Affiliation Pages

Volume I – August 30 Stephen E. Davis Stephen Davis 104-199& Associates, Inc.

Eugenia Tew Respondent 200-243

Volume II – August 31 Eugenia Tew Respondent 253-286Leonard W. Thagard Respondent 288-350Corinne A. Railey Respondent 352-437

Volume III – September 6 Kay Williams Stafford Respondent 447-498Janet Alice Melvin Respondent 500-535Francine Denise Fisher Respondent 538-563Linda Sorrell Respondent 564-599Monica Strickland Ruffin Respondent 600-644Stephen E. Davis Stephen Davis &

Associates, Inc. 645-665

Volume IV – September 7 Stephen E. Davis Stephen Davis& Associates, Inc. 702-755

Volume V – September 8 Stephen E. Davis Respondent 772-903

Volume VI – October 23 Melba Boyette Respondent 914-959Russell O’Berry Petitioner 960-1112Sarah W. Bradshaw Respondent 1113-1128

Volume VII – October 24 Sarah W. Bradshaw Respondent 1148-1346

Volume VIII – October 25 Sarah W. Bradshaw Respondent 1357-1546

Volume IX – October 26 Sarah W. Bradshaw Respondent 1559-1741

Volume X – October 27 Sarah W. Bradshaw Respondent 1759-1862Russell O’Berry Petitioner 1888-1965

Volume XI – November 28 Russell O’Berry Petitioner 1995-2205

Volume XII – November 29 Russell O’Berry Petitioner 2221-2247Sarah W. Bradshaw Respondent 2259-2279

B. Respondents’ Exhibits Admitted Into Evidence

1. Memo of Agreement Between Sampson County DSS and Stephen Davis & Associates, Inc

2. Davis Report Received on January 12, 2005

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3. Notebook of Materials Compiled by Stephen Davis

27. 11/22/04 Letter from Railey to Bradshaw

28. Purge Order Collections

30. 11/23/04 Letter from Bradshaw to Petitioner re Investigatory Placement

31. 12/15/04 Letter from Bradshaw to Petitioner re Extension of Investigatory Placement

32. 12/15/04 Beth Amos Report

34. 4/11/97 Letter from Hobbs to Petitioner re Dismissal Proceeding

36. 10/16/97 Letter from Crandell to Petitioner re Extension of Probation

38. Prestage Farms Check to Petitioner

41. 7/12/04 Notes of Bradshaw for the Record and Previous Issues (July 4 / May 4 / prior)

42. 7/12/04 Notes of Bradshaw from Petitioner Conference

43. 11/5/04 Notes of Bradshaw re Railey Conversation

44. 11/12/04 Notes of Bradshaw

45. 1/11/05 Notes of Bradshaw re Responses Received from Petitioner During Pre-Dismissal Conference

63. Notes of Bradshaw 11/17/04 – 1/11/05

C. Respondents’ Exhibits Admitted Pursuant to Stipulations

23. 11/18/04 Letter from Thagard to Petitioner

24. 4/3/03 Letter from Thagard to Bradshaw

25. 4/2/03 Notes of Bradshaw Re Purge Order Issue

26. 11/03/04 Order of Dismissal in 04 CVD 987

29. Child Support Supervisor II Position Description Form

33. 1/10/05 Memo from Bradshaw to Petitioner re Notice of Pre-Dismissal Conference

37. Interrogatory Number 1 Response – Complaints Received Involving Petitioner

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39. 5/27/04 Memo from Boyette to Devane-Hayes re V.M.

40. 6/10/04 Letter from V.M. to Bradshaw

46. 11/4/04 Foy Thornton Phone Message

47. 11/04/04 Transmittal Memo from Hobbs and Notes from Matthis

48. 12/03/02 Letter from Beal to DSS Director

49. 11/17/04 Memo from Bradshaw to Petitioner

50. 1/13/05 Letter from Bradshaw to Petitioner re Notice of Dismissal

51. DSS Board Notebook [With the exception of Tab 40 which was admitted over objection]

52. 4/15/05 Advisory Decision from DSS Board

53. 4/26/05 Letter from Locus to Williamson re Reinitiating Step Four

54. 4/26/05 Letter from Sauer to Locus Acknowledging Receipt of Step Four Request

55. 5/4/05 Letter from Williamson to Locus and West Responding to Locus’ Letter of 4/20 and Setting Hearing Date

56. 5/9/05 Letter from Locus to West Requesting Copy of the Record

57. 5/9/05 Letter from Howard to Locus and West re Judge Conner has been Assigned to Preside over Step Four Proceeding

58. 5/25/05 Letter from West to Locus Forwarding Fully Executed Copy of Stipulation of Exhaustion of Grievance Procedure (and Original of Stipulation)

59. Step Four Decision

60. 5/26/05 Letter from Bradshaw to Wright Transmitting Step Four Decision and Letter from Locus Initiating Step Four of the Grievance Procedure

61. 5/31/05 Letter from Bradshaw to Wright Transmitting Step Three Decision Letter

62. 6/01/05 Letter from Maynard re Office of State Personnel does not Conduct Investigations or Grievance Hearings. Further Appeal will need to be with OAH.

64. 11/30/04 Letter from Bradshaw to Miller

65. Lee’s First Request for Interrogatories and Production of Documents

66. Lee’s Second Request for Interrogatories and Production of Documents

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D. Petitioner’s Exhibits Admitted Into Evidence

45. Discrimination Complaint from Petitioner [Admitted for the limited purpose of providing the proffer of evidence as to why a meeting was moved from one date to another. Not received in support of claims of discrimination and retaliation that were dismissed – see Vol. XI, pp. 2131-2132]

92. Letter to Crandell re Extension of Probation [Admitted for the purpose of responding to Respondents’ Exhibit 34. Not received in support of claims of discrimination and retaliation that were dismissed – see Vol. XI, p. 2132]

101. Lee’s Notes of 11/12/04 Conference with Bradshaw

E. Petitioner’s Exhibits Admitted Pursuant to Stipulations

2. 10/28/04 Memo from Petitioner to Naylor and 11/05/05 Memo from Naylor to Bradshaw

4. 4/25/03 flyer

9. 6/10/04 Letter from V.M.

10. 5/27/04 Boyette Memo

11. 12/3/02 Memo from Beal

13. 11/4/04 Memo from Matthis

14. Message from Mr. Thornton

15. Paternity Authorization

17. 11/22/04 Letter from Railey to Bradshaw

18. Order of Dismissal

20. 11/18/04 Thagard Letter

21. 11/23/04 Letter from Petitioner to Thagard

22. Letter from Judicial Standards to Petitioner

23. Letter from Judicial Standards to Petitioner


34. Letter from Bradshaw to Petitioner re Investigatory Placement

35. Extension of Investigatory Placement

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39. Proposed Dismissal

40. Dismissal Notice

42. 1/10/05 Letter from Bradshaw to Petitioner

43. 11/30/04 Letter from Bradshaw to Miller

46. Letter from Locus to West

47. Letter from West to Locus

48. Letter from Bradshaw to Petitioner re January 10th Meeting

49. 1/10/05 Letter from Bradshaw to Petitioner re Pre-Dismissal Hearing

50. Letter from Locus to Bradshaw re Step One

51. Letter from Petitioner to Bradshaw re Request for Information

52. Letter from Locus to Bradshaw

53. 2/1/05 Letter from Locus to Bradshaw re Request for Information

54. Letter from Locus to Bradshaw re Grievance Procedures

55. Letter from Bradshaw to Locus re Response to Inquiry

56. Letter from West to Locus re Response to Inquiry

57. Letter from Bradshaw to Locus re Step One Determination

58. Letter from Locus to West Request for Transcript

59. 3/7/05 Letter from Locus to Bradshaw re Step Two

60. 3/21/05 Letter from Bradshaw to Locus re Step Two Determination

61. 3/24/05 Letter from Locus to Bradshaw re Request for Information

62. 3/29/05 Letter from DSS Board to Locus

63. Letter from DSS Board to Locus and West re Notice of Hearing

64. 4/8/05 Letter from West to DSS Board

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65. Letter from Locus to McGuirt re Step Three Inquiry

66. 3/23/05 Letter from Locus to McGuirt re Step Three


68. 4/15/05 Letter from McGuirt to Bradshaw

69. Letter from Bradshaw to Petitioner re Step Four Determination

70. 4/26/05 Letter from Locus to Chair, Respondent Board of Commissioners re Step Four Appeal

71. 5/26/05 Letter from Bradshaw to Wright


73. 6/1/05 Letter from Maynard to Bradshaw

75. Lee’s Position Description

83. Transcript of Step One Grievance Proceedings

89. 10/21/97 Memo from Boyette to Crandell

94. 4/3/03 Letter from Thagard to Bradshaw

98. 10/14/03 Memo from Hayes to Petitioner

99. 10/14/03 Letter from Petitioner to Bradshaw


V. FINDINGS OF FACT

Based upon a preponderance of the admissible evidence, the undersigned makes the

following Findings of Fact. (These findings are accompanied by citations to the record, where

deemed appropriate).

A. Identity of Parties, Witnesses, Procedural Points and Other General or Undisputed Information

1. All parties have been correctly designated and there is no question as to misjoinder or non joinder of parties.

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2. Petitioner is an individual residing in Sampson County and is a former employee of Respondent Sampson County Department of Social Services.

3. Respondent Sampson County Department of Social Services is the former employer of Petitioner.

4. Respondent is not a necessary party to this contested case. However, pursuant to N.C.G.S. § 126-37(c), the County is entitled to notice of any final decision which may be entered in this contested case and is entitled to intervene in any judicial review of any final decision which may be issued in this case. The decision of the superior court on judicial review is binding on the County even if it does not intervene.

5. Stephen E. Davis . Mr. Davis is Interim Executive Director of the State Employees Combined Campaign for the State of North Carolina, a position to which he was appointed in November 2005. The executive director is responsible for the management and administration of all the campaign regulations, policies, operating procedures and so forth that govern the official workplace giving campaign for statement employees and retirees. In this position Mr. Davis supervises seven employees. From July 1978 to July 2003 Mr. Davis was employed by the State of North Carolina in a variety of positions, including State Personnel Director. Virtually all of these positions had to do with some aspect of human resources administration. As Deputy State Personnel Director and to an extent as State Personnel Director, he would have been involved in the resolution of the most complex or politically sensitive human resources matters that came through the Office of State Personnel. At one point in his career with the State Davis was responsible for supervising the personnel system that included employees of local Departments of Social Services. In 2004, after retiring from the State, Mr. Davis formed Stephen Davis & Associates, Inc. of which he is currently president. A primary focus of this business is human resource consultation to state agencies and local governments. Davis has also consulted with the law firm of Allen and Pinnix in its representation of employees in contested cases against their former state government employers. In both this position and his former positions with the State, Mr. Davis has been involved in cases involving the investigation of alleged unacceptable personal conduct or job performance issues. (Vol. I, Davis, pp. 103-119).

6. Eugenia Tew . Ms. Tew is currently employed by Sampson County Child Support, where she has been employed for six years in customer service. In that position she greets clients and gives them information and applications. She also receives child support payments. In addition, Ms. Tew is responsible for entering client data into the computer and relaying information to the Child Support Agents. She is essentially the first person that a client sees upon entering the office. (Vol. I, Tew, p. 202).

7. Leonard W. Thagard . The Honorable Leonard W. Thagard is Chief District Court Judge for the Fourth Judicial District, the district that encompasses Respondent. He has held the office for approximately five years. As Chief District Court Judge, Judge Thagard supervises seven District Court Judges who regularly hear matters involving the establishment and enforcement of child support orders. (Vol. II, Thagard, pp. 287-290).

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8. Corinne Ann Railey . Ms. Railey is a practicing attorney with the law offices of Warrick and Railey in Clinton, Respondent, North Carolina. Her firm has a contract to provide assistance with collection and establishment of child support in the County. Ms. Railey joined the firm in February of 2003 and began regularly assisting Mr. Warrick with regard to child support enforcement cases in April or May 2003. Essentially her job entails attending District Court for two days a week every other week with the Child Support Enforcement Agents to assist them in establishing support orders, including judgments of paternity, as well as enforcing support orders by way of civil contempt actions, or performing modifications of existing court orders. (Vol. II, Railey, pp. 352-355).

9. Kay Williams Stafford . Ms. Stafford is a Supervisor II at the Sampson County Child Support Office. She has worked for the Child Support Unit since December 1991, and has held her current position since July 2005. Prior to that she was a Supervisor I, supervising the Enforcement Section.

10. Janet Alice Melvin . Ms. Melvin is a Supervisor I for the Enforcement Unit in the Sampson County Child Support Office. She has been employed by the Child Support Enforcement Unit since December 1990. She was originally hired as an agent prior to the time that the Child Support Unit was part of the Department of Social Services.

11. Francine Denise Fisher . Ms. Fisher is a Child Support Agent II for the Sampson County Department of Social Services. She was hired by the Department of Social Services on January 21, 1992, and started working as a Child Support Agent in the Child Support Enforcement Office on January 1, 2000.

12. Linda Ingram Sorrell . Ms. Sorrell is a Child Support Enforcement Agent II for the Sampson County Child Support Office. She has been employed by the Child Support Unit since February 1993. When she began working for the Child Support Unit she was the paralegal.

13. Monica Strickland Ruffin . Ms. Ruffin is a Child Support Agent II with the Sampson County Department of Social Services. She has worked in the Child Support Office of the Department of Social Services from 1997 until 1999, and from September 2000 to the current date. In 2000 when she returned to the office, she was hired as a Child Support Agent I.

14. Melba Boyette . Ms. Boyette is presently a Child Support Agent II for the Sampson County Department of Social Services. She was hired in January 1991. (Vol. VI, Boyette, pp. 913-914).

15. Russell O’Berry . Prior to January 2005, Petitioner was a Child Support Supervisor II with the Sampson County Department of Social Services. In that position, he was the manager for the Child Support Office. He was originally hired into the Sampson County Child Support Agency in August 1987, prior to the time that the office came under the coverage of the Sampson County Department of Social Services. (Vol. VI, Petitioner, 960-962).

16. Sarah W. Bradshaw . Ms. Bradshaw is the Director of Social Services for Sampson County, a position she has held for seven years. She has a B.A. in psychology and has worked for the Respondent since August 1990. From August 1990 to July 1, 1994, she was an

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Income Maintenance Caseworker I in the Food Assistance Program. From July 1, 1994 to July 1, 1996, she was an Income Maintenance Investigator II. In 1996 she began work as an Income Maintenance Supervisor I in the Work First Program. This position was reclassified to Social Work Supervisor I and Ms. Bradshaw worked in this position until July 1999, when she was appointed as Director for the Agency. (Vol. VI, Bradshaw, pp. 1112-1114).

B. Background

1. From August 1987 to January 13, 2005, Petitioner was employed as the Office Manager of the Sampson County Child Support Office. (Vol. VI, Petitioner, pp. 961-962).

2. At all times relevant to this case after 1997, the Sampson County Department of Social Services (“DSS”) was organized into three main units – the Public Assistance Unit; the Adult, Child and Family Services Unit (“Services”); and the Child Support Unit (“Child Support Office” or “Office”). Organizational charts showing the organization of these units within DSS are contained in Res. Exh. 3, pp. 626-631. (Vol. VI, Bradshaw, pp. 1113-15).

3. The Child Support Office became a unit within DSS in 1997. Prior to that time, the Office was a unit of County government and the manager of the Office was directly supervised by the County Manager. Jerry Hobbs was the County Manager and Larry Crandell was the DSS Director. The Office was moved after disciplinary action was imposed on Petitioner by Hobbs. At the time the Office became a unit within DSS, Petitioner was classified as a Child Support Supervisor II. (Vol. VI, Petitioner, pp. 961-62; Vol. VI, Bradshaw, p. 1118).

4. Sarah Bradshaw became the Director of the Sampson County Department of Social Services in 1999. In that position, she supervised Petitioner. Petitioner viewed Bradshaw as an excellent manager who did not micromanage the Child Support Office. When complaints about the Office were made known to her, she would ask to sit down with Petitioner to discuss the complaints. (Vol. VI, Petitioner, pp. 966-968; Vol. XI, Petitioner, p. 2154).

5. As Office Manager, it was Petitioner’s responsibility to manage the Office, supervise the personnel, interpret policy and oversee the budget. It was also Petitioner’s responsibility to train the child support agents he supervised to function in court on behalf of the Office. (Vol. VI, Petitioner, pp. 964-965).

6. In November 2004, Petitioner supervised 16 employees. (Vol. VI, Bradshaw, p. 1117; Res. Exh. 3, p. 628).

7. In November 2004, the Child Support Office was organized into two sections – the Paternity/Establishment Section and the Enforcement Section. Virgie Devane-Hayes supervised the Establishment Section and Kay Stafford supervised the Enforcement Section. The two reported directly to Petitioner. The organizational chart showing the organization of the unit in November 2004 is located at Res. Exh. 3, p. 628. The names of the Office employees as well as their position classifications is shown. (Vol. VI, Petitioner, p. 965; Bradshaw, pp. 1115-16).

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8. An establishment agent establishes paternity, support and medical coverage for clients of the Child Support Office. The responsibilities of an establishment agent include preparing the cases prior to court, and then attending court to assist in the prosecution of the cases. Although it was the responsibility of these agents to come to court, Petitioner did not believe it was necessary. (Vol. VI, Boyette, pp. 915-16; Vol. VI, Petitioner, p. 966).

9. In order to establish the proper amount of child support to be ordered by the Court, the establishment agent inputs wage and salary information received from the client, the non-custodial parent and/or the non-custodial parent’s employer into a worksheet and then uses guidelines established by law to determine the amount of child support. If the non-custodial parent does not have a job, then the agent imputes the minimum wage. The court order for child support is based on these guidelines. There are no deviations from this unless the client requests it. (Vol. III, Melvin, pp. 505-08).

10. An enforcement agent monitors the child support orders to be sure that court ordered payments are being made and court ordered health insurance is being maintained. In cases where a person is not complying with their court ordered child support obligation, the enforcement agents take action to enforce the orders. (Vol. III, Stafford, pp. 451-52; Vol. III, Fisher, p. 539; Vol. III, Sorrell, p. 566; Vol. III, Ruffin, pp. 602-03).

11. In cases where there is a delinquency in the payment of child support, an enforcement agent may contact the non-custodial parent’s employer or send a noncompliance letter to the non-custodial parent. If the non-custodial parent does not have a job, or if they do not bring their child support up to date, the agent assists the Office’s counsel in preparing a show cause order as to why the obligor should not be held in contempt of court. (Vol. III, Fisher, pp. 540-41).

12. Child Support Court in Sampson County is held every two weeks for two days a week. When Petitioner managed the Office, cases involving the enforcement of existing orders were heard on Tuesday and cases involving the establishment of support were heard on Wednesday. (Vol. II, Railey, p. 354; Vol. III, Stafford, p. 453).

13. Sampson County is in the Fourth Judicial District of North Carolina. In this district only one District Court judge is assigned to hear child support cases during a particular week. During the next rotation a different District Court judge is assigned to Child Support Court. (Vol. II, Railey, pp. 356-57).

14. At the beginning of each session of Child Support Court during which Orders to establish support obligations are calendared, there is a discussion with non-custodial parents in the courtroom regarding the amount of child support the Office is seeking to establish. When Petitioner was the Manager of the Office, those discussions would take place at the counsel table. Petitioner, the attorney representing the Office and the agents who had cases on the calendar would be present. (Vol. III, Melvin, pp. 508-10; Vol. III, Fisher, 541-43).

15. Ms. Corinne Railey is an attorney with the law firm of Warrick and Railey in Clinton. At all times relevant to this case, the law firm had a contract with Sampson County DSS to represent the Child Support Office in Child Support Court. Railey began representing

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the Office in April or May 2003. Railey’s representation includes preparing pleadings to establish support, preparing motions to enforce court orders for child support that have already been entered, and attending court with Petitioner and the agents of the Child Support Office. As attorney for the Child Support Office, Railey worked with Petitioner on a regular basis from April or May 2003 to November 2004. (Vol. II, Railey, pp. 352-58).

C. Incidents That Caused Concern and Led to Petitioner’s Investigatory Placement

November 2, 2004 Incident in Judge Seaton’s Court

1. On November 2 and 3, 2004, Judge Sarah Seaton was presiding over Child Support Court. Petitioner was present, sitting at the counsel table with Ms. Railey. Various child support agents were also present. On November 2, while Judge Seaton was conducting court, she had to direct Petitioner two or three times to be quiet because he was engaged in conversations that were loud and disruptive with people behind him or to the side of him. Subsequently, Judge Seaton expressed her concern about Petitioner’s behavior to Railey in chambers. (Vol. II, Railey, pp. 357, 379-80, 396; Vol. III, Stafford, pp. 454-54; Vol. III, Ruffin, pp. 613-14; Vol. III, Fisher, p. 550; Vol. III, Sorrell, pp. 568-69; Res. Exh. 27).

2. On November 5, 2004, Ms. Railey telephoned Sarah Bradshaw to express her concerns about two things: (1) Petitioner’s direction to her on November 3 (establishment day) to dismiss a case against a parent named Erica Parker for the establishment of a child support order and his interaction with the agent responsible for that case; and (2)Petitioner’s blatant disrespect towards Judge Seaton during court on November 2 (enforcement day). With regard to the Erica Parker case, Railey was concerned because she received conflicting instructions from the agent and Petitioner, which made her job difficult. The agent did not believe the case should be dismissed. Petitioner wanted the case dismissed. Furthermore, Railey was concerned about the manner in which Petitioner addressed the agent. The instruction was given in an offensive tone, in open court, and in front of defendants and clients of the Office. (Vol. II, Railey, pp. 390-94; Vol. VII, Bradshaw, pp. 1194-97; Res. Exhs. 3, 26 and 43).

3. Ms. Railey told Ms. Bradshaw that Petitioner showed blatant disrespect for Judge Seaton by talking while court was in session in a manner that required Judge Seaton to direct Petitioner to be quiet several times. On the first occasion, Petitioner reacted by rolling his eyes and laughing. On the second occasion, Judge Seaton said, “Mr. Lee!” and on the third occasion, Judge Seaton was visibly upset and said, “Mr. Lee, I can’t hear. You need to quiet down.” (Vol. II, Railey, pp. 378-80; Vol. III, Sorrell, p. 568; Vol. III, Ruffin, p. 614; Vol. VII, Bradshaw, pp. 1195-97; Res. Exhs. 27 and 43).

4. Ms. Bradshaw requested that Ms. Railey put her concerns in writing. (Vol. II, Railey, pp. 390-91; Vol. VII, Bradshaw, p. 1198; Res. Exh. 27).

5. Res. Exh. 27 is the letter written by Corinne Railey to Ms. Bradshaw and is dated November 22, 2004. Among other things, Railey states in the letter that she has heard caseworkers addressed disrespectfully by Petitioner and heard him dismiss the caseworker’s opinions and decisions regarding their cases. (Res. Exh. 27). Respondent’s Exhibit 27 is quoted in full below and found as a fact:

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November 22, 2004

Sarah BradshawDirector of RespondentDepartment of Social ServicesPO Box 1105Clinton, NC 28329

RE: Court concerns

Dear Mrs. Bradshaw:

This letter is in follow-up to our previous telephone conversations. I want to express my concerns about the difficulty I sometimes experience in communicating with my client, the Agency, during child support sessions of court. As the attorney representing the Respondent Child Support Enforcement Agency, a division of the Respondent Department of Social Services, it is necessary that I am able to obtain a clear decision from my client in regard in how to proceed on certain case matters. There have been numerous times during open court sessions that I am unable to obtain a clear directive from my client as to how to proceed. This is largely due to the fact that Mr. Russell Lee, the Office Manager for the Respondent Child Support Enforcement Agency and any particular case worker give conflicting opinions and instructions as to how to proceed. This type of conflict hinders my ability to represent the Respondent Child Support Enforcement Agency adequately and zealously.

In addition, I am concerned about the manner in which Mr. Lee addresses child support case worker, clients, Defendants and Judges. I have witnessed comments, which I believe to be unprofessional and inappropriate to the work that we are trying to accomplish for the agency. I have heard case workers addressed disrespectfully and their opinions and decisions regarding their cases be dismissed. I have witnessed degrading comments toward Defendants. I have been approached by more than one District Court Judge regarding the demeanor and behavior of Mr. Lee in court. In particular, I noted one incident in which a Judge rendered a decision and in open Court, Mr. Lee made a disrespectful comment, which the Judge heard and later indicated to me was an act of direct contempt of the Court. This sort of conduct is not appropriate and does not provide any assistance in meeting the goal of collecting child support. Indeed, I experienced a day in Court in front of Judge Seaton, in which I believe that the agency was hindered in the collection of monies due to the poor relationship that Mr. Lee has developed with that particular Judge.

Mr. Lee has recently directed me to dismiss a complaint to establish child support for four minor children residing in foster care sponsored by the Respondent Department of Social Services. His reasoning was that it was not cost efficient, given that the mother of the minor children was working for a wage that would have resulted in a minimum child support amount. Additionally, two of the minor children were receiving Social Security for their individual disabilities. My

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understanding and reading of the law dictates that the Respondent Child Support Enforcement Agency establish child support orders whether or not the matter is cost efficient for the agency and/or the State.

Sincerely,

Corinne A. RaileyCAR/aap

6. Petitioner agreed during his testimony in this case that, in spite of the fact that he typically did not see the case files until he was actually in court on the day they were called and then would only look at them for three to five minutes, he did reverse agents’ strategies for cases in court. (Vol. VI, Petitioner, pp. 1102-07).

7. Petitioner does not believe his employees had a legitimate reason to disagree with his strategies in court. (Vol. XI, Petitioner, p. 2177).

November 4, 2004 – Paternity Test Scheduled for foster child, D. T.

8. Eleanor Matthis is a Social Worker III employed in the Foster Care section of the Services Unit in Sampson County DSS. (Vol. VII, Bradshaw, p. 1184).

9. Mary Margaret Hobbs is the manager of the Services Unit. (Vol. VII, Bradshaw, p. 1183).

10. Paula Bradshaw is a Child Support Agent I in the Child Support Unit of the Sampson County Department of Social Services. (Vol. VII, Bradshaw, p. 1186).

11. Wendy Thornton is a Child Support Agent II in the Child Support Unit of the Sampson County Department of Social Services. (Vol. VII, Bradshaw, p. 1182).

12. On November 4, 2004, Ms. Matthis accompanied a foster child in the legal custody of DSS named D. T. and his grandmother to the Child Support Office for a paternity test. (Vol. VII, Bradshaw, pp. 1183-85; Res. Exh. 47).

13. The paternity test had been scheduled by Wendy Thornton. (Vol. VII, Bradshaw, pp. 1188-89; Res. Exh. 47).

14. While the phlebotomist, Mr. Tew, who was going to administer the test, was asking questions of the child and taking his picture, Petitioner entered the room where Mr. Tew, Ms. Matthis, Paula Bradshaw and D. T. were gathered and asked what the employees were doing. Petitioner had been out of the office at the courthouse. When Paula Bradshaw told him the child was being tested, he replied, “What have I told you about these cases? They are supposed to go through me.” Then he asked Matthis to step into his office to explain what was going on. (Vol. VII, Bradshaw, pp. 1186 and 1189; Res. Exh. 47).

15. The purpose of the test was to establish the paternity of D. T. D. T. was receiving child support through Medicaid. When paternity has not been previously established, receipt of

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those funds triggers the Child Support Office to set up a case to establish the paternity of the recipient so that the Medicaid program can be reimbursed for its payments in support of the child. (Vol. VII, Bradshaw, pp. 1192-93).

16. Petitioner was concerned about whether the Child Support Office should pay for the test. In a December 3, 2002 directive, Pheon Beal, then Director of the State’s Division of Social Services, had written, “It has come to my attention that some DSS agencies are requesting that the local Child Support Enforcement Agency arrange genetic testing with Child Support Enforcement contract genetic testing laboratories to facilitate the adoption of children in the care of the DSS agency. … Child support funds may only be used for Child Support Program functions.” (Vol. VII, Bradshaw, pp. 1191-92; Res. Exh. 48).

17. However, the test to determine D. T.’s paternity was not ordered to facilitate his adoption, but rather to establish child support. (Vol. VII, Bradshaw, pp. 1193-94).

18. The purpose of the test was to determine whether the putative father, who was currently in jail, was indeed the father, and therefore a proper custodian for the child, who had been removed from his mother’s care due to neglect, and was now in the legal custody of DSS. (Vol. V, Davis, p. 893).

19. Ms. Matthis accompanied Petitioner to his office. Matthis explained that DSS had legal custody of D. T. Petitioner asked whether the Services Unit had requested the test and Matthis replied that the test had been ordered by either a Child Protective Services custody worker, Laura Peterson, or that the Child Support Office had ordered it. Petitioner and Matthis telephoned Peterson who told them the testing had been ordered by the Office. (Res. Exh. 47).

20. Ms. Matthis returned to the testing room and the phlebotomist, Mr. Tew, went to Petitioner’s office. After waiting about 20 minutes, Matthis became concerned by the delay because the child was missing school, so she walked to Petitioner’s office to check on the status of the testing. While she was in the hallway she could hear Petitioner and Tew talking and laughing. Petitioner told Matthis they were not going to test the child. (Vol. VII, Bradshaw, p. 1187, Res. Exh. 47).

21. Ms. Matthis prepared to leave with D. T. and took him to Wendy Thornton in order to get a tardy note for school. Matthis was accompanied by Virgie Devane-Hayes and Paula Bradshaw, both of whom apologized for Petitioner. Ms. Thornton also apologized and started to cry. (Res. Exh. 47).

22. Subsequently, that same day, Petitioner told Virgie Devane-Hayes that he cancelled the test because she had forged his name on the form authorizing the paternity test and obligating the Child Support Unit for payment. (Vol. VII, Bradshaw, pp. 1209-10.)

23. Sarah Bradshaw became aware of the events of November 4, 2004 that same day as a result of a phone call from Mary Margaret Hobbs and a message from her assistant regarding a phone call from Mr. Foy (Laney) Thornton, Wendy Thornton’s husband. That same day, Ms. Hobbs transmitted to Bradshaw a memo Matthis had prepared for Hobbs describing the incident. (Vol. VII, Bradshaw, pp. 1182-85; Res. Exhs. 46, 47).

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24. The memo from Ms. Matthis stated her concerns: that there was an extended period of time when D. T. was out of school waiting for a test which was never administered; Petitioner intervened to prevent the testing; and the manner in which Petitioner intervened. (Vol. VII, Bradshaw, pp. 1185-86; Vol. X, Bradshaw, pp. 1765-66; Res. Exh. 47).

25. On November 5, 2004, Ms. Bradshaw talked with Ms. Matthis about the events of November 4th. After talking with Matthis, Bradshaw spoke with Matthis’ supervisor, Saundra Hines. Hines told Bradshaw about a paternity test which had been scheduled for July 30, 2004. In that instance, Petitioner had refused to allow the Services Unit to use the Child Support Office account to pay for a paternity test for a foster child who had been taken into DSS’s legal custody as the result of neglect. At that time, Petitioner had written an email to Hines stating that “If paternity is to be of importance[sic] to your case, you will need to set up your own accout[sic] with the blood testing firm.” (Vol. VII, Bradshaw, pp. 1202, 1210; Res. Exh. 43, pp. 995-97).

26. Later that same day, Bradshaw went to the Child Support Office and spoke with Wendy Thornton and Virgie Devane-Hayes about the November 4th incident. She intended to talk with Petitioner about the incident, but he had already left for the day. November 5th was a Friday. (Vol. VII, Bradshaw, pp. 1201-02; Res. Exh. 43, p 996).

27. Ms. Thornton described the D. T. testing incident to Ms. Bradshaw in much the same way Ms. Matthis had described it in her memo and told Ms. Bradshaw that Petitioner had been rude and disrespectful in the way he handled the matter by the manner and tone in which he interrupted the test in front of the clients. (Vol. VII, Bradshaw, pp. 1205-07; Res. Exh. 43, p. 998).

28. Ms. Devane-Hayes told Ms. Bradshaw that Petitioner had told her that she had forged his name to the form. Devane-Hayes told Bradshaw it was standard procedure for her to sign the form in Petitioner’s absence and that she was authorized to do so. Examination of the form shows that it was not forged but was signed by “Hayes for R. Lee.” (Vol. VII, Bradshaw, pp. 1209-10; Pet. Exh. 15; Res. Exh. 3, p. 713).

29. On Wednesday, November 10th, Ms. Bradshaw contacted Petitioner and scheduled a meeting with him for Friday, November 12, 2004. The two met that day. Bradshaw began the meeting by telling Petitioner that concerns were coming to her from his staff and Railey, and told him everything she had been told on November 4th and 5th. This included Ms. Railey’s telephone call and concerns, Bradshaw’s assistant’s message regarding Mr. Thornton’s phone call, the paternity test scheduled for November 4th, the procedure regarding signing paternity testing authorizations, and Ms. Matthis’ concerns about Petitioner’s intervention in the paternity test. (Vol. VI, Petitioner, p. 1002; Vol. VII, Bradshaw, pp. 1213-15; Res. Exh. 44).

30. Ms. Bradshaw asked Petitioner why D. T. had not been tested on November 4th. Petitioner responded that he had told his staff not to sign the form authorizing paternity tests when he was away from the office because he wanted to review those matters for potential errors and that Ms. Devane-Hayes did not have his authority to sign the form. Petitioner said Devane-Hayes had forged his name. Bradshaw responded that she knew Petitioner was out of the office at times, but that paternity testing was a routine procedure, and asked why he did not have a procedure in place that would allow the tests to move forward in his absence. Petitioner

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responded that no forms were to be completed when he was out of the office. (Vol. VII, Bradshaw, pp. 1214-15, 1223; Res. Exh. 44; Pet. Exh. 15).

31. Petitioner was out of the office, at the courthouse, on November 4, 2004 when Devane-Hayes signed the form authorizing the paternity test. (Res. Exh. 3, p. 710).

32. Petitioner admitted during his testimony that the issue of testing the foster child, D. T., who was in the custody of the Respondent in November 2004, had nothing to do with the identification of the account to be charged. Petitioner knows that it is appropriate to test children who are in the custody of DSS to determine their paternity so that DSS can recoup money for the Medicaid funds used to support the children. He also knows that no complaint has to have been filed in court to initiate the testing. (Vol. XI, Petitioner, pp. 2194-2205; Vol. XII, Petitioner, pp. 2221-26).

33. Ms. Bradshaw discussed with Petitioner the concerns that had been raised by Ms. Matthis regarding Petitioner’s intervention in the paternity test on November 4th and told Petitioner that Matthis had said he was rude and unprofessional. Petitioner denied any rude or unprofessional conduct. (Vol. VII, Bradshaw, p. 1215; Res. Exh. 44).

34. On November 12, 2004, Ms. Bradshaw met with Petitioner and informed Petitioner that Ms. Railey communicated to her that Petitioner was rude and disrespectful to Judge Seaton during court on November 2, 2004, that Judge Seaton had to ask Petitioner to be quiet several times. Petitioner denied Judge Seaton told him to be quiet, but did recall that at one point he tossed his pad of paper onto the table in front of him, crossed his arms and sat back just looking at the judge, in reaction to a ruling she had just made. (Vol. VII, Bradshaw, pp. 1216-17, p. 1223; Vol. X, Bradshaw, p. 1770; Res. Exh. 44).

35. During his testimony in this hearing, Petitioner acknowledged that on November 2, 2004, Judge Seaton had told him she could hear him above everybody else in the courtroom and had directed him to be quiet twice. (Vol. VI, Petitioner, pp. 1036-41).

36. Ms. Bradshaw told Petitioner about her conversations with Ms. Thornton and Ms. Devane-Hayes and told Petitioner she had asked them to put their concerns in writing. Bradshaw said that due to the gravity of the information she had received, she did not want him to attend court or speak with any of the people who had expressed concerns until they could meet again. Bradshaw said that meeting would occur soon. (Vol. VII, Bradshaw, pp. 1218-19, p. 1222; Res. Exh. 44).

37. Petitioner responded by saying, “Yeah, whenever that will be” and then spoke to Ms. Bradshaw about “when you were doing your running around my office the other day” in reference to Bradshaw’s visit to the Office on November 5, 2004. Bradshaw responded that his comments were disrespectful and told Petitioner she had intended to speak with him on November 5th, but that he had left work early. Petitioner laughed. Bradshaw responded by cautioning Petitioner nothing funny was being discussed and that his laughing at her was inappropriate. Petitioner became visibly upset and told Bradshaw she was attacking his personality traits. Bradshaw responded that she was not attacking his personality traits, but was pointing out how his sarcasm came across to people. Petitioner responded that he did not care

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how Bradshaw felt. Bradshaw responded, “You don’t care?” and Petitioner replied, “That’s right, I don’t care” and then spelled out “C-A-R-E, care.” Petitioner then told Bradshaw he didn’t intend to change his business style just to satisfy her needs. (Vol. VII, Bradshaw, pp. 1218-19, p. 1222; Res. Exh. 44).

38. At this point Petitioner stood, said he knew he was getting upset and told Ms. Bradshaw he wanted her to end the meeting and finish the discussion another day. Bradshaw replied that she wanted to continue, asked Petitioner to have a seat, and asked her assistant, Janet Rosenberger to join them. Soon after that the meeting concluded. (Vol. VII, Bradshaw, pp. 1213-22; Res. Exh. 44).

39. During his testimony in this hearing, Petitioner admitted that he “giggled” at Ms. Bradshaw and acknowledged that she had become upset. Petitioner testified that he had told Bradshaw that he could laugh anytime he felt like it and that he did not intend to change his business style just to satisfy her needs. By “business style” Petitioner meant his laughter and personal character. (Vol. VI, Petitioner, pp. 1013-16, Pet. Exh. 101). In Petitioner’s notes of this meeting he records the following:

This upset me: I lost it. I advised her that I was not her child and would not stand there and be treated as one. I advised her that no one controlled when I laughed. I told her that I thought she was funny and I would laugh then, now, or any other time I chose too. I told her that all this conversation about how I “come across” to others was not addressing how she was coming across to me. I advised her that I was too angry to continue this conversation and I suggested we close for now before I said something I nor her would like. I suggested it was a good time for a lunch break.

40. During his testimony in this hearing, Petitioner testified that when he had stood up to leave the meeting on November 12, Ms. Bradshaw told him to shut up and sit down. After the interview, Petitioner made notes of what had transpired at the meeting because “… he wanted to remember exactly what was said and how it was said.” Petitioner testified he wanted the notes to be as complete as he could be. (Vol. XI, Petitioner, p. 2180).

41. Pet. Exh. 101 are the notes created by Petitioner after his meeting with Ms. Bradshaw on November 12, 2004. In describing the portion of the interview when Bradshaw asked him not to leave, Petitioner simply wrote that she asked him to have a seat. (Vol. XI, Petitioner, p. 2181, Pet. Exh. 101).

42. It is not credible that Ms. Bradshaw told Petitioner to shut up and sit down during the meeting of November 12, 2004. This finding is based on the omission of this statement in Petitioner’s notes specifically recorded to document the significant events of this meeting.

43. Petitioner understood on November 12, 2004, that Ms. Bradshaw was discussing with him a pattern of frequent conduct that had occurred over a period of time. (Vol. VI, Petitioner, p. 1012).

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44. When Petitioner met with Ms. Bradshaw on November 12th, he understood she was concerned about a pattern of sarcasm and arrogance displayed over a period of time. (Vol. XII, Petitioner, pp. 2230-31).

45. Several times during the meeting on November 12th, Petitioner asked Ms. Bradshaw, “What is the charge?” Bradshaw explained that there was no charge and reiterated that she had sought additional information. At one point in the meeting, Petitioner used the word “firing.” Bradshaw responded that he had not mentioned nor implied that he was being fired and pointed out that the meeting was not a disciplinary action. (Vol. VII, Bradshaw, pp. 1225-26; Res. Exh. 44).

November 17, 2004 telephone call from Judge Thagard to Sarah Bradshaw

46. At Ms. Bradshaw’s request, Petitioner did not attend Child Support Court the week following his meeting with Bradshaw. Chief District Court Judge Thagard presided over Child Support Court the week of November 15-19, 2004. On Wednesday, November 17, 2004 Ms. Bradshaw received a telephone call from Judge Thagard. Court was in recess for lunch. Judge Thagard told Bradshaw the two days he had conducted court during that time were the two best days of his career. Although the statement was hyperbole, Judge Thagard considered court to be much more pleasant without Petitioner present. (Vol. II, Thagard, p. 313; Vol. VII, Bradshaw, p. 1227).

47. Chief District Court Judge Thagard (Fourth Judicial District) then told Ms. Bradshaw about an incident that had occurred in his courtroom on October 20, 2004. Chief Judge Thagard told Bradshaw that he had never been as close to sending a state employee to jail for contempt of court as he had been on that day. (Vol. VII, Bradshaw, p. 1227;Res. Exh. 63). Chief Judge Thagard recorded specifically this incident in his correspondents, Res. Exh. 23, as follows:

November 18, 2004

Mr. Russell LeeOffice ManagerSampson Co. Child Support Enforcement OfficeP.O. Box 879Clinton, NC 28329-0879

Dear Mr. Lee:

On October 20, 2004, I made a ruling in a case, which you apparently did not like. You were openly critical of my judgment while Court was still in session. You certainly have the right to disagree with my decisions and even be critical of me. However, you do not have the right to do so in open Court. I will not tolerate such conduct from any attorney or a litigant, and I certainly will not tolerate it from a third party such as yourself.

This letter should serve notice to you that, in the future, any rude or disrespectful conduct on your part will subject you to sanctions from the Court.

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Sincerely,

Leonard W. ThagardChief District Court Judge

LWT/dw

Cc: Sarah Bradshaw, Director District Court Judges

D. Investigatory Placement and Investigation

Investigatory Placement Procedure

1. On November 17, 2004 Ms. Bradshaw wrote Petitioner asking him to meet with her on November 22nd (Monday) to follow up on the meeting they had on November 12, 2004. (Vol. VII, Bradshaw, p. 1230; Res. Exh. 49).

2. Ms. Bradshaw planned to meet with Patrick McCoy, a Human Resources Managing Partner with the North Carolina Office of State Personnel on November 22, before her meeting with Petitioner, in order to seek his advice on how to address the concerns that had been raised about Petitioner. Sometime between the time she wrote the letter to Petitioner scheduling the meeting and the end of the day on November 19, McCoy telephoned Bradshaw to tell her he would need to postpone their meeting until November 23. (Vol. VII, Bradshaw, p. 1231).

3. As a result of her phone conversation with Mr. McCoy, Ms. Bradshaw rescheduled her November 22nd meeting with Petitioner to the afternoon of November 23, 2004. (Vol. VII, Bradshaw, p. 1231).

On November 22, 2004 Ms. Bradshaw received Corinne Railey’s letter, Res. Exh. 27, in response to Bradshaw’s request of Railey on November 5 that she put the concerns she expressed that day in writing. The letter documented the concerns Railey had voiced to Bradshaw on November 5th about the incident in Judge Seaton’s court room on November 2nd. (Vol. VII, Bradshaw, pp. 1234-37; Res. Exh. 27).

4. Ms. Bradshaw was very concerned by the contents of Ms. Railey’s November 22nd letter and concluded that she needed to fully investigate how matters were being handled in court, and whether there were problems with Petitioner’s personal conduct. (Vol. VII, Bradshaw, pp. 1234-35, 1237-38).

5. Ms. Bradshaw also was concerned that there seemed to be some hesitation on the part of the staff to fully inform her concerning events in the Child Support Office. (Vol. II, Bradshaw, p. 1234).

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6. Ms. Bradshaw met with Mr. McCoy at his office in Raleigh on the morning of November 23, 2004, and told him all her concerns related to Petitioner’s job performance and personal conduct, including her interviews with and observations of the staff, her meeting with Petitioner on November 12th and her concerns about the letter she had received from Corinne Railey. Bradshaw asked McCoy whether investigatory placement would be permissible to allow her to gather more information and to be sure that the information was accurate. McCoy advised that investigatory placement would be a permissible action, so Ms. Bradshaw decided that was the course she would follow. (Vol. VII, Bradshaw, pp. 1231-33).

7. On the afternoon of November 23rd, at 2:00 p.m., Ms. Bradshaw met with Petitioner. Bradshaw’s assistant, Janet Rosenberger, was present in the meeting. Bradshaw reviewed with Petitioner the concerns that had been discussed at the November 12th meeting and also the information Bradshaw had received since that meeting. Bradshaw told Petitioner she had decided to place him on investigatory placement. Petitioner responded that might be the thing to do. Petitioner testified during this contested case that Bradshaw had the authority to place him on investigatory placement and that there was nothing unlawful about her doing so. (Vol. VII, Bradshaw, p. 1238; Vol. VI, Petitioner, pp. 1017-19; Vol. XII, Petitioner, p. 2232).

8. At the November 23, 2004 meeting Ms. Bradshaw gave Petitioner a letter informing him that he was being placed on investigatory placement with pay based on information that she had received since their meeting on November 12th regarding inappropriate conduct in court and deficiencies in the performance of Petitioner’s duties as the Supervisor of the Child Support Office that might constitute just cause for disciplinary action. Bradshaw read the letter to Petitioner during the meeting. (Vol. VI, Petitioner, pp. 1016-17; Vol. VII, Bradshaw, p. 1238; Res. Exh. 30; Res. Exh. 63, p. 1009).

9. Petitioner lost no pay or benefits while he was on investigatory placement. (Vol. VI, Petitioner, pp. 1019-21).

10. Immediately after his meeting with Ms. Bradshaw on November 23rd, Petitioner went to the Respondent Courthouse and retrieved copies of tapes of two Child Support court dates. One of the tapes was for the October 20, 2004 session presided over by Judge Thagard. Petitioner knew this was the hearing during which he had made comments to Judge Thagard which almost resulted in his being held in contempt. (Vol. VI, Petitioner, pp. 1021-23).

11. Later on November 23rd, after the meeting with Petitioner, Ms. Bradshaw reviewed her mailed copy of a letter dated November 18, 2004 from Judge Thagard to Petitioner. The letter recounted the incident in court on October 20th that Judge Thagard had told Ms. Bradshaw about when he called her, and notified Petitioner that any rude or disrespectful conduct from him in the future would subject him to sanctions from the Court. (Vol. II, Thagard, p. 298; Vol. VII, Bradshaw, pp. 1243-44; Res. Exh. 23).

12. Petitioner also received Judge Thagard’s letter on November 23, 2004. Petitioner knew the incident described in the letter was the October 20, 2004 hearing regarding the defendant who owed back child support to both Sampson and Buncombe Counties that is described in Findings of Fact 126-135. (Vol. VI, Petitioner, p. 1029)

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13. On November 30, 2004, Ms. Bradshaw initiated two separate investigations of Petitioner. One was an investigation by Mr. Stephen Davis that was to focus on personnel management issues, and the other was an investigation by the State Child Support Enforcement Office that was to focus on job performance issues and whether child support cases were being handled properly. (Vol. VII, Bradshaw, p. 1245).

14. Ms. Bradshaw contacted Stephen Davis of Stephen Davis & Associates by phone on November 30, 2004 and met with him in her office on December 6, 2004. Davis had been recommended to her by another DSS Director, Jack Jones. Davis planned to schedule a meeting with staff and others on December 10, 2004. (Vol. VII, Bradshaw, p. 1253; Res. Exh. 63, p. 1027).

15. On December 8, 2004, Mr. Davis contacted Ms. Bradshaw to let her know he needed more than one day to interview people and was scheduled to complete his interviews on December 20, 2004. Davis stated he believed he could have a preliminary report to Bradshaw by December 23, 2004. (Vol. VII, Bradshaw, p. 1259; Res. Exh. 63, p. 1027).

16. Beth Amos, Assistant Chief for Local Operations at the North Carolina Child Support Enforcement Office, conducted the investigation that focused on job performance issues. She and a member of her staff interviewed all of the staff in the Child Support Office individually and privately on December 9, 2004. (Res. Exh. 32, p. 1042).

17. On December 9, 2004, Ms. Amos contacted Ms. Bradshaw and that based upon interviews of staff supervised by Petitioner, she would need additional time to review case files because of information she had received about foster care cases. (Vol. VII, Bradshaw, pp. 1258-59; Res. Exh. 63, p. 1027).

18. As a result of the contacts from Mr. Davis and Ms. Amos, Ms. Bradshaw extended Petitioner’s investigatory placement. On December 15, 2004, Bradshaw sent a letter to Petitioner extending the placement with pay until January 13, 2005. (Vol. VI, Petitioner, p. 1023; Vol. VII, Bradshaw, p. 1261; Res. Exh. 31).

19. Petitioner acknowledged there was nothing unlawful with Bradshaw extending the investigatory placement. (Vol. VI,Petitioner, p. 1024).

Beth Amos Investigation

20. In a report dated December 15, 2004 and received by Ms. Bradshaw on December 17th, Ms. Amos, forwarded the findings of her investigation (the “Amos Report”). (Vol. VI, Petitioner, p. 975; Vol. VII, Bradshaw, pp. 1248, 1250; Res. Exh. 32).

21. Based upon investigative interviews with the enforcement agents, Ms. Amos concluded that Petitioner was not impartial in his negotiations and that certain non-custodial parents were not required to make payments to purge themselves of contempt in the same manner as other non-custodial parents. All but one enforcement agent reported that Petitioner often spoke rudely and inappropriately to clients if they questioned his negotiations. Several employees reported that Petitioner spoke rudely and inappropriately to clients when they visited

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the Child Support Office and asked questions about their case. Amos reported, “All but two employees stated that Petitioner made rude and humiliating comments to staff members as well as to clients.” The report states, “Mr. Lee cursed at employees if they questioned his decisions or if Mr. Lee suspected the employee had gone over his head with complaints.” Amos wrote that the employees conducted themselves in a professional manner when they were interviewed. (Vol. VI, Petitioner, p. 976-77; Vol. VII, Bradshaw, pp. 1249-50; Res. Exh. 32).

22. Ms. Amos did not consult with Mr. Davis in preparing her report. (Vol. VII, Bradshaw, p. 1250).

Stephen Davis Investigation

23. When Ms. Bradshaw met with Mr. Davis on December 6, 2004, she informed him that three specific incidents involving Petitioner caused her concern. Those three incidents were: (1) Oral reprimands Petitioner had received in court from Judge Seaton on November 2, 2004; (2) Petitioner’s intervention in a paternity testing case on November 4, 2004; and (3) A written letter from Chief District Court Judge Leonard Thagard on November 18, 2004. (Vol. V, Davis, p. 790; Res. Exh. 2, p. 0231).

24. Res. Exh. 2 is the report that Mr. Davis compiled together with all of the attachments to the report (the “Davis Report”). The Davis Report was mailed to Ms. Bradshaw by Davis, and she received it on January 12, 2005. (Vol. VII, Bradshaw, pp. 1265-66; Res. Exh. 2).

25. The phrase “… need to substantiate …” as used in the introductory paragraph of the Davis Report means determining whether the allegations which led Ms. Bradshaw to put Petitioner on investigatory placement were true. (Vol. V, Davis, p. 900; Res. Exh. 2, p. 231).

26. Res. Exh. 3 is a notebook that contains all of the documents obtained and reviewed by Mr. Davis regarding the investigation of Petitioner. It also includes Davis’ notes, interview schedules, and correspondence with Respondent. The notes of each interview were taken at the time of each respective interview. (Vol. I, Davis, pp. 131, 136; Vol. III, Davis, pp. 646, 648).

27. The handwritten notes at Res. Exh. 3, Tab 1 are Mr. Davis’ notes and reflect his conversation with Ms. Bradshaw on January 6, 2004. The comments were incorporated into the final version of the report. (Res. Exh. 3, Tab 1).

28. Mr. Davis interviewed the following employees of the Child Support Unit: Kay Stafford, Virgie Devane-Hayes, Wendy Thornton, Monica Ruffin, Linda Sorrell, Dwayne Blue, Melba Boyette, Janet Melvin, Denise Fisher, Nicole Stevens, Genia Tew and Geraldine Boone. (Vol. III, Davis, pp. 648-54).

29. Mr. Davis interviewed DSS employees Mary Margaret Hobbs, Alvinia Parker and Eleanor Matthis. (Vol. III, Davis, p. 653).

30. Mr. Davis also interviewed attorney Corinne Railey, Chief District Court Judge Leonard Thagard, and District Court Judge Sarah Seaton. (Vol. III, Davis, p. 653).

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31. Pages 702-743 of Res. Exh. 3 are the notes Mr. Davis took at these interviews. Davis relied upon these notes in preparing the Davis Report. Material in the notes that showed a pattern of behavior and a relationship to conduct or performance was highlighted in blue highlighter by Davis and appeared in the exhibit introduced into evidence as shaded lines within the notes. Davis highlighted portions of his notes that were ultimately the foundation for findings that he made in his report, which is Res. Exh. 2. Davis incorporated into the report verbatim highlighted portions of his notes that were quotes from employees. (Vol. III, Davis, pp. 648-55; Vol. IV, Davis, pp. 719-20; Res. Exh. 3, pp. 702-43; Res. Exh. 2).

32. Mr. Davis’ notes accurately reflect what the people interviewed said to him. (Vol. III, Davis, p. 654).

33. Mr. Davis interviewed Petitioner on two separate dates, December 16 and December 20, 2004. (Vol. III, Davis, pp. 655-56; Res. Exh. 3, pp. 702-06).

34. When Mr. Davis interviewed Petitioner on December 16, he explained to Petitioner the purpose of the interview. Petitioner suggested that Davis interview Geraldine Boone, Kay Stafford, Virgie Devane-Hayes, Deputy Sheriff Dwight Barber who was assigned to the Child Support Office, and County Commissioner John Blanton. Davis interviewed everyone except Barber and Blanton. (Vol. III, Davis, p. 656).

35. Section II of the Davis Report sets forth the “Purpose and Scope” of the report. Section III sets forth the “Process.” Section IV in the Davis Report is entitled “Findings.” This section contains several subsections in which Mr. Davis set forth the findings of his investigation. Among the subsections are those entitled “Inappropriate Conduct in Court,” “Interaction with Staff,” and “Client Relations and Client Complaints.” Section V of the report sets forth Davis’ “Summary of Findings” and in Section VI, Davis sets forth his “Recommendations.” (Vol. III, Davis, pp. 662-64; Res. Exh. 2, pp. 231-242).

36. Mr. Davis concluded, after talking with Petitioner, employees, Ms. Railey, and judges, that Petitioner’s conduct in court was at times rude, unprofessional and disruptive. Furthermore, he concluded that Petitioner’s behavior impeded progress in court proceedings. (Vol. III, Davis, p. 665; Vol. IV, Davis, p. 718; Res. Exh 2, pp. 232-37, 239-41; Res. Exh. 3, pp. 708, 712, 714, 716, 719-20, 722, 725, 727, 730).

37. In the section of the Davis Report entitled “Interaction with Staff,” Mr. Davis concluded that Petitioner’s behavior toward the employees that he supervised was at times hostile, abusive, threatening and intimidating. In some cases, the behavior was at times retaliatory. (Vol. IV, Davis, p. 721; Res. Exh. 2, pp. 234-35; Res. Exh. 3, pp. 707, 712, 714, 718-19, 723, 725-26).

38. As requested by Ms. Bradshaw, Mr. Davis interviewed Ms. Devane-Hayes, Ms. Matthis, Ms. Hobbs and Petitioner regarding the paternity testing incident that occurred on November 4, 2004 and that was one of the bases for .Petitioner’s investigatory placement. Davis also reviewed the memo from Eleanor Matthis to Mary Margaret Hobbs regarding this issue, and Ms. Hobbs’ transmittal note to Ms. Bradshaw. (Vol. IV, Davis, pp. 722-24; 730; Res. Exh. 2, pp. 0244, 0255).

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39. Based on his interviews of the employees involved in the paternity testing incident and his review of the Matthis memo and Hobbs note, Mr. Davis expressed concern in his report with the manner in which Petitioner intervened in the paternity testing. Based upon the public nature and tone of Petitioner’s questions to the employees in the presence of a client and his grandmother, and the anxiety that the delay created for the employees, Davis concluded Petitioner’s conduct was inappropriate. (Vol. IV, Davis, p, 724; Vol. V, Davis, p. 870, 872; Res. Exh. 2, pp. 235-37).

40. Section V of the Davis Report is entitled “Summary of Findings.” In that section, Mr. Davis accurately sets out that he interviewed 21 people and summarizes the cumulative response from the interviewees. (Vol. IV, Davis, pp. 737-39; Res. Exh. 2, p. 0240).

41. Mr. Davis did not use employees’ names in the report because approximately six employees stated concerns that Petitioner would retaliate against them if he returned to employment after investigatory placement. Several employees told Davis that in the past Petitioner had threatened to fire them if they put cases on Judge Jones’ court calendar. Petitioner had also threatened to fire Sorrell for adjusting the temperature controls for the HVAC equipment, and had threatened to put information in Ms. Tew’s personnel file in retaliation for his suspicion that she had reported to Bradshaw that Devane-Hayes’ child was staying at the office. (Vol. IV, Davis, pp. 739-41).

42. At the end of his report to Ms. Bradshaw, Mr. Davis stated his recommendation to Bradshaw in a portion of the report entitled “Recommendations.” In this section Davis stated that Bradshaw would be justified in imposing discipline on Petitioner up to and including dismissal because Petitioner’s behavior constituted unacceptable personal conduct. Davis did not believe Petitioner’s actions supported discipline for job performance reasons. (Vol. IV, Davis, p. 750; Res. Exh. 2, p. 241).

43. It is management’s responsibility to make the decision regarding whether to impose discipline on an employee subject to the State Personnel Act. However, it is appropriate for management to consult with the Office of State Personnel before making those decisions. (Vol. IV, Davis, p. 751).

44. Mr. Davis faxed a copy of his draft report to Ms. Bradshaw on January 6, 2005. Davis discussed the draft with Bradshaw by telephone and Bradshaw clarified for Davis the reasons she had placed Petitioner on investigatory placement. The draft stated that the letter from Judge Thagard dated November 18, 2004 was a basis for the placement. Bradshaw clarified for Davis that she had not received Judge Thagard’s letter until the afternoon of November 23, after she placed Petitioner on investigatory placement. (Vol. VII, Bradshaw, p. 1262-63; Res. Exh. 3, Tab 1).

45. Ms. Bradshaw received the final version of the Davis’ report on January 10, 2005 by fax. On January 12, 2005 she received a mailed copy of the Davis Report which included the attachments. The Davis Report did not change between January 10 and January 12, 2005. Petitioner had in his possession all of the attachments to the report prior to January 10, 2005. (Vol. VII, Bradshaw, pp. 1265-66; Res. Exh. 2).

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46. Other than the phone call from Corinne Railey, the phone call from Wendy Thornton’s husband, and the memo from Eleanor Matthis in early November, 2004, Ms. Bradshaw first gained full knowledge of the behaviors and comments attributed to Petitioner, which are reported in the Davis Report, when she read the report in early January 2005. (Vol. X, Bradshaw, p. 1804).

E. Findings of Just Cause for Termination of Petitioner

Pattern of Unprofessional Conduct Toward Judges and Others Related to Court Proceedings

October 20, 2004 Incident in Court presided over by Judge Thagard

1. As Manager of the Respondent Child Support Office, Petitioner regularly appeared before Judge Thagard when he was presiding over Child Support Court. (Vol. II, Thagard, p. 291).

2. On October 20, 2004, Petitioner and Ms. Railey, who represented the Child Support Office, were in court. Chief Judge Thagard was presiding. The last case of the day involved a defendant who was subject to a contempt order for past due child support in both Sampson and Buncombe Counties. Respondent had obtained a lien on a personal injury settlement that the Child Support Office believed the defendant would be obtaining. The settlement payment was made and paid into the Respondent Clerk of Court, but due to an error by the clerk’s office, the lien payment was applied not just to the defendant’s debt to Respondent, but also to his debt to Buncombe County. The lien payment was sufficient to satisfy the debt to Respondent had the full amount been applied to that debt. The issue in the hearing was whether the defendant had purged himself of contempt in Respondent since the amount was split with Buncombe County. Chief Judge Thagard ruled that the defendant did not owe any more arrears to Respondent – a ruling Petitioner disagreed with. (Vol. II, Thagard, p. 292; Res. Exh. 3, pp. 704, 734, 742).

3. While Chief Judge Thagard was still in the courtroom, Petitioner, who was seated at the counsel table, crossed his hands, sneered and shook his head “no.” Then Petitioner stood up, threw some papers down on the table, and said in a voice loud enough for everyone in the courtroom to hear, “Who is going to pay us the money? Is Buncombe County going to pay us the money?” Petitioner told Davis during one of his interviews that he should not have said that to Judge Thagard. (Vol. II, Thagard, pp. 291-93, 323; Vol. II, Railey, pp. 380-82; Vol. III, Stafford, pp. 479-81; Vol. VI, Petitioner, p. 1034; Res. Exh. 3, p. 742).

4. Petitioner acknowledged in his testimony at this contested case hearing that after Chief Judge Thagard made his ruling on October 20th, he had picked up his notepad and thrown it down on the counsel table. (Vol. VI, Petitioner, pp. 1033-35).

5. Chief Judge Thagard considered Petitioner’s actions to be contemptuous. (Vol. II, Thagard, p. 294; Res. Exh. 23, Res. Exh. 27).

6. After the people present for the hearing had left, Chief Judge Thagard called Ms. Railey into his chambers and told her that he had heard Petitioner’s comment and told Railey that

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was the closest he had come to holding a state employee in direct contempt of court. Chief Judge Thagard told Railey she needed to attempt to control her client because he was not going to tolerate that behavior in his courtroom. (Vol. II, Railey, pp. 382-83; Res. Exh. 27).

7. Either that same day, or the next day while the two were in court, Ms. Railey told Petitioner he had aggravated the judge greatly and that he had come close to being cited for contempt. (Vol. II, Railey, p. 383).

8. Petitioner’s response was to chuckle. (Vol. II, Railey, p. 397).

9. On November 18, 2004, Chief Judge Thagard wrote a letter to Petitioner telling him that in the future “any rude or disrespectful conduct on your part will subject you to sanctions from the Court.” (Vol. II, Thagard, p. 296-98; Res. Exh. 23).

10. When Petitioner was interviewed by Mr. Davis, and asked by Mr. Davis about any comments that Petitioner might have made to judges, Petitioner referred to the incident on October 20, 2004 in Chief Judge Thagard’s courtroom. (Vol. VI, Petitioner, pp. 1030-34; Res. Exh. 3, p. 704).

November 2, 2004 Incident in Court presided over by Judge Seaton

11. Petitioner’s disruptive conduct during a court session on November 2, 2004 for which Judge Seaton orally reprimanded Petitioner at least twice, (see Findings of Fact numbers 32-38) was one of the investigatory findings which supported Ms. Bradshaw’s dismissal of Petitioner. (Res. Exh. 50, p. 1317).

MRI Incident in Court presided over by Judge Seaton

12. In July or October 2004, Judge Seaton was conducting Child Support Court when Petitioner disagreed loudly with a ruling the judge made. Judge Seaton had called attorney Railey over to the side to tell her that a defendant that had been jailed was being released to obtain a medical test relating to his back. When Railey returned to the counsel table, Petitioner said he didn’t know anything about the release and asked her what was going on, and then asked under what finding of fact the judge had released the defendant. Judge Seaton was coming onto the bench at the time Petitioner asked the question. Petitioner told Railey that the defendant had not had a back injury the day before. Railey asked Petitioner what he expected her to do and Petitioner responded that at least he would expect to be heard on the merits of the defendant’s request. (Vol. VI, Petitioner, pp. 1004-09; Res. Exh. 3, p. 743; Res. Exh. 2, p. 233; Res. Exh. 3, p. 743; Res. Exh. 27).

13. Petitioner admitted during the hearing of this contested case that he has a voice that carries so much that he believes Judge Seaton heard his protests about her decision. There were 35 to 50 people in the court room at the time Petitioner made his protestation. (Vol. XII, Petitioner, pp. 2227-29).

14. Page 743 of Res. Exh. 3 is Mr. Davis’ notes of his interview of Judge Seaton in which she recounted for Mr. Davis, Petitioner’s questioning of her decision in court to release the defendant. (Res. Exh. 3, p. 743).

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15. In the Davis interview Judge Seaton replied to Petitioner, “The Court hears.” Petitioner often questioned her rulings after court, but to do so in court as he did on this occasion left a terrible impression. (Res. Exh. 3, p. 743).

16. Petitioner’s challenge was described as disrespectful to the Court and a breach of professional conduct. (Res. Exh. 2, p. 0233).

Order Not to Put Cases on Judge Jones’ Calendar and Threat to Fire Employees for Doing So

17. Judge Carol Jones is a District Court Judge serving the Fourth Judicial District. On a date when she was presiding over Child Support Court in Respondent, Judge Jones had occasion to order that an absent parent, who had been arrested by the sheriff on an outstanding warrant for failing to purge himself of contempt for failure to pay past due child support, must be released from custody. The absent parent was in the Respondent courthouse pursuant to process served on him in another case. When agents of the Child Support Office saw him, they notified the sheriff and asked that he be arrested. The absent parent’s attorney then made a motion to Judge Jones to have the absent parent released, arguing that an individual that was in court pursuant to process on one matter cannot be arrested pursuant to process issued in another civil matter. Judge Jones granted the motion. Later that same day, Judge Jones was in Respondent’s Office visiting an agent, Janet Melvin, who is a social friend of the judge’s. Petitioner went to Melvin’s office and asked Judge Jones the basis of her ruling. Judge Jones told Petitioner the basis for her ruling. Petitioner replied that he thought she was wrong and inferred her ruling was incorrect. A conversation between Petitioner and Judge Jones followed that became argumentative. Eventually, Judge Jones said to Petitioner that either he should leave or she should. Petitioner replied, “Well, this is my office.” At that point, Judge Jones left. Afterwards, as he was walking down the hall back to his office, Petitioner bragged that he had told Judge Jones that the Office was his territory and that he was the one in charge at Child Support. (Res. Exh. 24; Vol. III, Stafford, pp. 465-67; Vol. III, Melvin, pp. 521-22; Res. Exh. 3, pp. 714, 716, 718, 721, 726, 732; Res. Exh. 2, p. 234).

18. Shortly after the court session in which Judge Jones recalled the arrest warrant, and the incident with Judge Jones in Ms. Melvin’s office, Petitioner gathered all the enforcement agents into Ms. Stafford’s office and advised them that if they scheduled any new cases on Judge Jones’ calendar he would fire them. The agents called into the meeting were Monica Ruffin, Denise Fisher, Geraldine Boone, Linda Sorrell, Margaret Jania and Melba Boyette. Petitioner said Judge Jones was too lenient and described her as “arrogant.” (Vol. III, Stafford, pp. 467-68; Vol. III, Melvin, p. 523; Vol. III, Sorrell, pp. 570-74; Vol. III, Ruffin, pp. 624, 641; Vol. VI, Petitioner, p. 1043; Res. Exh. 3, p. 718; Res. Exh. 3, pp. 714, 716, 718, 721, 726, 732).

19. During the hearing of this contested case, Petitioner admitted the incident with Judge Jones in Ms. Melvin’s office, that he had ordered his staff not to put new cases on Judge Jones calendar, and that he had told at least one employee that putting a case on Judge Jones’ calendar would be grounds to consider her for termination. (Vol. VI, Petitioner, pp. 1043-48).

20. Ms. Melvin discussed with Petitioner his directive not to put new cases on Judge Jones’ calendar and asked him why he was responding in this way since she was new to the

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bench. Petitioner responded that Judge Jones was “just arrogant” and “she knows everything.” (Vol. III, Melvin, p. 523).

21. Prior to January 2005, when Petitioner was dismissed from employment, there would be an average of 150 cases on the calendar on the first day of a Child Support court calendar (enforcement cases) and between 30 to 45 cases on the second day (establishment cases). However, after Petitioner threatened to fire agents if they put new cases on Judge Jones’ calendar, there were only about 30 enforcement cases and 10 to 15 establishment cases on her calendar. These cases were holdovers from a prior docket. As a result, the Child Support Court session that followed the next month would be so full that the Office could not always get through the cases and they would have to be continued to the next session. (Vol. II, Railey, pp. 384-85, 389; Vol. III, Sorrell, pp. 574-75).

22. There is a regulatory deadline for processing child support cases through court. The agents of the Child Support Office reminded Ms. Railey of the importance of meeting that deadline. (Vol. II, Railey, p. 385; Res. Exh. 3, p. 721).

23. The collection goals of the Child Support Office were inhibited by effectively removing one of the judge from the calendar. (Vol. III, Sorrell, p. 574; Res. Exh. 3, p. 721).

General Pattern of Unprofessional Conduct in Court

24. Prior to the October 20, 2004 incident in court presided over by Chief Judge Thagard, Chief Judge Thagard regularly told Petitioner to cease inappropriate conduct in court. On occasion, the Chief Judge would say to Petitioner, “Mr. Lee, don’t do that” or “Mr. Lee, be quiet.” Despite that, in subsequent sessions of court, Petitioner would repeat the same conduct which led Chief Judge Thagard to caution him. By October 20, 2004, Petitioner’s inappropriate actions and his repeating them after being cautioned had built up to the point where Chief Judge Thagard felt it was necessary to write his letter of November 18, 2004. (Vol. II, Thagard, pp. 349-50; Res. Exh. 23).

25. Prior to October 20, 2004, Chief Judge Thagard had observed Petitioner exhibit the same type of behavior when Chief Judge Thagard made a ruling Petitioner did not agree with as he had exhibited that day. Petitioner would sneer, shake his head “no” and mutter. Sometimes, Petitioner would cross his arms and shake his head “no” indicating to Chief Judge Thagard that he had made an incorrect ruling. (Vol. II, Thagard, pp. 297-98).

26. Petitioner made snide comments to Chief Judge Thagard in open court, heard by Chief Judge Thagard when Petitioner disagreed with the judge’s rulings. Chief Judge Thagard observed and heard Petitioner make snide comments to litigants as well. (Vol. II, Thagard, p. 305).

27. The child support agents who attended court regularly observed Petitioner demonstrate a variety of inappropriate behaviors during courtroom sessions, including talking when the judge was on the bench, and throwing his tablet on the table and making gestures, or chuckling and grinning if he didn’t like the judge’s ruling. (Vol. III, Stafford, pp. 453, 455,

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463-464; Fisher, p. 548; Ruffin, p. 615; Res. Exh. 3, pp. 708, 715-16, 718-19, 722-23, 725-27; Res. Exh. 2).

28. Petitioner admitted during his testimony in this contested case hearing that he had thrown his pad on the table in reaction to a ruling. (Vol. VI, Petitioner, pp. 1048-49).

29. As Supervisor of the Enforcement Section of the Child Support Office, Ms. Stafford attended court every enforcement court date, normally twice a month. She frequently observed Petitioner do or say things in court that she believed to be inappropriate. One day, when he was upset with a ruling, Petitioner laughed, reared back in his seat and tossed his pen on the table. Another time she heard Petitioner say, “I can’t believe that,” after the judge’s ruling. The comment was loud enough for everyone in the courtroom to hear, including the judge. (Vol. III, Stafford, pp. 453, 455, 464).

30. Both Chief Judge Thagard and Judge Seaton have discussed Petitioner’s courtroom demeanor and behavior with Ms. Railey, concerning Petitioner’s behavior on October 20, 2004 and November 2, 2004. (Vol. II, Railey, p. 396; Res. Exh. 27).

31. From the time Ms. Railey began representing the Office in 2003 until Petitioner stopped attending court in November 2004, Railey observed and heard Petitioner address agents in a similar manner to the way he addressed the agent involved in the Erica Parker case on November 3, 2004. Petitioner routinely reminded caseworkers of his authority as the one in charge and that he made the final decision on child support issues. These reminders were made at times in open court, in an offensive tone and loud enough that everyone present could hear Petitioner. Railey was concerned that these statements were made in such a tone in front of clients and defendants so as to cause embarrassment to agents. (Vol. II, Railey, pp. 395-96, 421).

32. Petitioner acknowledged during his testimony in this contested case hearing that if a supervisor is truly problematic in court, disrespectful and embarrassing, and routinely impedes progress in court and produces judicial antagonism, that would constitute unacceptable personal conduct. (Vol. VI, Petitioner, p. 1051).

Pattern of Unprofessional, Disrespectful, and Insulting Conduct Toward Clients and Non-Custodial Parents in Court and in the Child Support Offices

Comments Heard in the Courtroom

33. During negotiations in the courtroom prior to court, Petitioner would at times make derogatory comments to defendants. Petitioner would say, “You’re a drunk.” In some situations it would be because the defendant smelled of alcohol. In other situations it would be because Petitioner had prior dealings with a particular defendant. Petitioner believed the defendant had spent his money consuming alcohol rather than paying child support. (Vol. II, Railey, pp. 367-68; Vol. III, Fisher, p. 546; Res. Exh. 2, p. 240; Res. Exh. 3, p. 725).

34. In some instances where defendants stated in pre-court negotiations that they could not make child support payments because of bad health, Petitioner routinely responded that

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he himself a bad heart, but he was working and if he could work, these defendants could work too. (Vol. II, Railey, p. 370; Vol. III, Stafford, p. 456, 458; Vol. III, Ruffin, p. 611).

35. On one occasion when Chief Judge Thagard was presiding over Child Support Court, a person on crutches approached the bench and told the judge he was going to be applying for disability. Petitioner looked him up and down and then said, “Oh, yeah. What’s your disability?” Chief Judge Thagard considered the comment to be rude to the individual and inappropriate. (Vol. II, Thagard, pp. 310-11).

36. When defendants stated in pre-court negotiations that they could not make child support payments because of other expenses they had to pay, or because they had to pay the rent, or because they were being evicted, Petitioner would often respond, “Well, my house is paid for.” (Vol. II, Railey, p. 371; Vol. III, Melvin, pp. 514-15; Res. Exh. 2, p. 234; Res. Exh. 3, p. 727).

37. In pre-court sessions, custodial parents would at times come forward and express concern or frustration over the inability of the Office to collect the child support they needed. At times, Petitioner would make comments to the custodial parents such as, “You laid down with him.” “You chose him.” “You’re the one who had the kids with him.” “He was like this when you laid down with him. How did you expect him to change?” “He’s had several other cases that he’s not paying on. Why do you think this would be any different?” “Well, I didn’t sleep with him, you did.” At times, Petitioner also made similar comments when dealing with an uncooperative client who was not providing the information needed to establish paternity. (Vol. II, Railey, pp. 373-74; Vol. III, Stafford, p. 460; Vol. III, Melvin, p. 512; Vol. III, Fisher, p 546; Vol. III, Sorrell, p. 576; Vol. III, Ruffin, pp. 608-09; Vol. VI, Boyette, pp. 930-31; Res. Exh. 2, p. 240; Rex. Exh. 3, pp. 712, 719-20, 722, 725, 727, 737).

38. If a non-custodial parent came into court with the document that they were served and asked what it was, because they were unfamiliar with the legal aspects of the document, Petitioner, at times, would say, “Can’t you read?” in a derisive manner. (Vol. III, Melvin, p. 513; Res. Exh. 2, p. 234; Res. Exh. 3, p. 727).

39. Ms. Railey initially was surprised by Petitioner’s rude and insensitive comments to defendants, but those comments became routine to her after working with Petitioner every other week. (Vol. II, Railey, pp. 372-73).

40. Ms. Melvin heard these insensitive comments made to defendants every court day, but she never reported Petitioner’s in-court behavior to anyone because it was part of Petitioner’s character to be rude and say things that he should not say. (Vol. III, Melvin, pp. 523-24).

41. Ms. Sorrell heard Petitioner make inappropriate comments or saw him make inappropriate gestures or expressions every date enforcement cases were heard in Child Support Court. (Vol. III, Sorrell, pp. 577-78).

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42. Ms. Ruffin heard Petitioner make these inappropriate comments to clients at least once or twice every date enforcement cases were heard in Child Support Court. (Vol. III, Ruffin, p. 610).

43. In pre-court, Petitioner, at times, would bully counsel and clients. He was the person that gave the final call on whatever was going to be accepted. (Vol. III, Ruffin, pp. 610-11).

44. When Mr. Davis interviewed Petitioner they discussed his interaction with clients during pre-court negotiations and interactions with his staff. Davis told Petitioner that interviewees had reported that he had been rude to clients. Petitioner explained to Davis that he didn’t understand the meaning of the word “rude” because it was a subjective word. Petitioner told Davis that he had intense interviews with clients and if some of the questions he asked could be interpreted as rude, they were necessary in the collection business. (Vol. VI, Petitioner, pp. 1057-59).

45. Petitioner testified that he believed it would be appropriate, during negotiations for the collection of child support, to say to non-custodial parents, “Can’t you read,” if they were coming in for an explanation of a letter they had received from the Office. Petitioner acknowledged that he had made such statements in the past. Petitioner also testified that it would be appropriate during negotiations with non-custodial parents to say to them, “That’s not my problem. My house is paid for,” during an intense interview or negotiation of an order. (Vol. VI, Petitioner, pp. 1060-62).

46. In the section of the Davis Report entitled, “Client Relations and Client Complaints,” Mr. Davis stated that interviewees corroborated that Petitioner was rude, disrespectful and abusive to clients when they came into the Child Support Office or when he spoke to them in court. Davis stated in his report that many employees heard Petitioner make inappropriate comments to clients such as “I’m not the one who slept with him,” or “Who else have you slept with?” “You laid down with him, I didn’t.” (Res. Exh. 2, p. 240).

47. Petitioner believed that in some instances, those types of derogatory comments would have been appropriate for him to have made to clients. Specifically, it would be appropriate for a supervisor in the Child Support Office to make those types of comments in heated, aggressive interviews where information is not forthcoming from the client and there is reason to believe that the clients are not truthful. (Vol. VI, Petitioner, pp. 1065-66).

48. Petitioner admitted making those comments or comments similar to those to clients and testified that he did not consider those comments to be rude or disrespectful when he was involved in aggressive interviews. (Vol. VI, Petitioner, pp. 1067, 1070-74).

49. Petitioner admitted that clients of the Office had become angry with him quite often in court and that defendants (non-custodial parents) had become angry with him and the attorney representing the Office. (Vol. VI, Petitioner, p. 1069).

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Comments Heard in the Office

50. As customer service representative for the Child Support Office, Ms. Eugenia Tew greets all clients either in person at the office or those who call in on the telephone. (Vol. I, Tew, p. 202).

51. Petitioner would spend a large percentage of his workday in Ms. Tew’s work area, monitoring phone calls with clients and also speaking with clients and absent parents when they came in. (Vol. I, Tew, pp. 208-09).

52. As many as five to seven times per week, Ms. Tew overheard Petitioner make comments to clients or absent parents that she considered to be inappropriate. The frequency of the comments was related to the number of irate clients who came into the office. (Vol. I, Tew, pp. 218, 229).

53. These inappropriate comments to parents would include statements such as, “I didn’t lay down with him. You did,” or “I’m not the one who slept with him,” or “You knew he was a drug dealer when you slept with him.” Petitioner would make these comments to angry clients who were not receiving the amount of child support that they expected. (Vol. I, Tew, pp. 228-29, 241; Res. Exh. 2, p. 240).

54. If a client of the Office did not understand a Child Support Order and telephoned or came to the Office to ask about it, Petitioner at times would say to them, “Can’t you read?” (Vol. I, Tew, pp. 229-30; Res. Exh. 2, p. 234).

55. Petitioner would often respond to a client’s question about what might happen in their case, “Let me rub my crystal ball.” That statement appeared to anger the clients to whom it was addressed. (Vol. I, Tew, pp. 230-31).

Pattern of Inappropriate and Highly Unprofessional Interactions With Staff Including Verbal Abuse, Intimidation, Humiliation, and Disrespect

56. Petitioner made comments to his staff on a regular basis that were demeaning and intimidating. (Vol. I, Tew, p. 231).

57. Petitioner threatened Ms. Tew’s job because of his belief that she had reported Ms. Devane-Hayes to Bradshaw. Petitioner had been in a meeting with Bradshaw during which Bradshaw told Petitioner that Devane-Hayes was bringing her child to the office rather than using day care. This practice had gone on during a period when Petitioner was on medical leave recovering from a heart attack. When Petitioner returned to the Office from the meeting, he yelled and cursed at Ms. Tew and accused her of giving Bradshaw the information. Tew denied making the report and that Petitioner should verify her denial with Bradshaw. Petitioner continued to curse at Tew and told her that he had a way of putting things in her personnel file to make her lose her job. (Vol. I, Tew, pp. 238-41; Res. Exh. 3, p. 736).

58. When Ms. Stafford’s son was preparing to enter college, Stafford accompanied him to his college physical in January 2004. While Stafford was at the appointment, Petitioner remarked to Paula Bradshaw, what was Stafford going to do, go back in the doctor’s office with

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her son and ask the doctor to pull it out so she could see how big it was? By the comment, Petitioner was referring to Stafford’s son’s penis. (Vol. I, Tew, p. 234; Vol. III, Stafford, pp. 481-84; Res. Exh. 2, p. 235; Res. Exh. 3, p. 707).

59. When Stafford returned from the appointment, Paula Bradshaw told her about Petitioner’s comment. Stafford became upset. (Vol. III, Stafford, p. 484; Res. Exh. 3, p. 707).

60. During the hearing, Petitioner denied making this comment, but testified that if such a comment were made, “… where there was a tradeoff of comments, it wouldn’t be inappropriate; and if such a comment were made as part of a joking exchange at work, that kind of comment could be appropriate. (Vol. VI, Petitioner, pp. 1097-1100).

61. In July 2004, after Ms. Bradshaw’s meeting with Petitioner on July 12th, Petitioner told Ms. Boyette that he was going to “get rid of her,” because a client by the name V. M. had filed a complaint with Bradshaw about the way Petitioner and Ms. Railey had handled her case in court. Boyette was the agent assigned to V. M.’s case and Petitioner believed Boyette had encouraged V. M. to file the complaint. (Vol. VI, Boyette, pp. 926-27; Res. Exh. 3, p. 723). During the pre-dismissal conference Bradshaw held with Petitioner, Petitioner admitted having made the comment. (Vol. VII, Bradshaw, pp. 1174-76; Vol. VI, Boyette, p. 926-927).

62. Petitioner was in the custom of making negative comments about other employees as frequently as two or three times. (Vol. III, Ruffin, pp. 621, 642; Res. Exh. 3, pp. 707, 712, 715-16, 720-21, 723, 738).

63. Petitioner made comments about Ms. Devane-Hayes to co-workers in the Office. Petitioner said Devane-Hayes was stupid and did not know what she was doing and that they shouldn’t follow her instructions. He also said that she wasn’t supervisory material. (Vol. III, Ruffin, pp. 620-21; Vol. VI, Boyette, p. 932; Res. Exh. 3, pp. 703, 711, 724).

64. During his second interview of Petitioner, Petitioner told Mr. Davis that employee Wendy Thornton had murdered her first husband. (Vol. III, Davis, pp. 657-58; Res. Exh. 3, p. 706; Res. Exh. 3, p. 706).

65. Petitioner also talked about Mr. Foy Thornton, the husband of co-worker Wendy Thornton, in the office; saying that he was a “drug addict” and a “crackhead,” and that Petitioner didn’t know why she (Wendy Thornton) still stayed with him after all the trouble that he had been in. (Vol. III, Ruffin, p. 620; Vol. III, Davis, pp. 657-58; Vol. VI, Boyette, p. 932; Res. Exh. 3, pp. 706, 715, 725).

66. Petitioner admitted during his testimony that he had called employee Wendy Thornton’s husband a “druggie” and a “crackhead”. (Vol. VI, Petitioner, p. 1100).

67. At a child support conference, Petitioner told Ms. Ruffin that he wished Melba Boyette’s husband would kill her. (Vol. III, Ruffin, p. 620).

68. Petitioner told Ms. Ruffin that the work performance of a co-worker, Nicole Stevens, was “sorry.” (Vol. III, Ruffin, pp. 619-20).

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69. After Ms. Ruffin returned from a court session, she noticed her desk chair was broken. While she was trying to fix it, Petitioner remarked to her, “I know how you can fix that. You can call Jenny Craig.” Ruffin was “blown away” by the comment. (Vol. III, Ruffin, pp. 621-22, 629-30; Vol. I, Tew, pp. 232-33; 267-70; Vol. III, Stafford, pp. 477-79; Vol. VI, Boyette, p. 931; Res. Exh. 3, pp. 715-17).

70. Petitioner made another offensive comment about Ms. Ruffin’s weight to employee Renee Hobbs. Hobbs was in the customer service office and Ruffin was nearby in the customer service lobby. Hobbs was describing a large toolbox that she was planning to get for her husband for Christmas and said, “It’s about as tall as Monica and about as wide as this desk.” To which Petitioner said, “Well, why didn’t you just say just as wide as Monica too?” Ms. Ruffin heard the comment and considered it to be hurtful, not funny. (Vol. III, Ruffin, pp. 622, 629-30; Res. Exh. 3, pp. 715-17).

71. Petitioner also made offensive comments about Ms. Ruffin’s weight to other employees in the office, remarking at an office Christmas party that Ruffin was as big as a particular table in the lobby of the office; and stating that she is the “widest white person he’d ever seen.” (Vol. I, Tew, p. 232).

72. Ruffin was asked on cross examination whether it wasn’t true that the “Jenny Craig” comment and the comment about the toolbox were just jokes. Ruffin replied, “I didn’t take it as a joke. I cannot speak for Mr. Lee.” Counsel then asked, “Well, when he made a comment about the toolbox, wasn’t that also a joke?” Ruffin replied, “It was not funny to me.” Counsel asked whether Petitioner was snickering and laughing. Ruffin replied, “He laughed. I didn’t.” Counsel then asked, “Yes, but he laughed in both cases, didn’t he?” Ruffin replied, “I’m sure he did.” If Petitioner meant the comments about Ms. Ruffin’s physical size as a joke, Ms. Ruffin didn’t take it that way. In fact, Petitioner’s comments brought her to tears. (Vol. III, Ruffin, pp. 630; Vol. I, Tew, pp. 232-33; 267-70; Vol. III, Stafford, pp. 477-79; Vol. VI, Boyette, p. 931)

73. Ms. Ruffin never reported the comments Petitioner made about her weight or his inappropriate conduct in court to Ms. Bradshaw or any other supervisor because she was afraid of retaliation by Petitioner. She had seen the way Petitioner acted toward Melba Boyette when she had reported something to Ms. Bradshaw and she didn’t want to be in that position. Ms. Ruffin was afraid that if she complained she would lose her job. (Vol. III, Ruffin, pp. 623-24).

74. Ms. Ruffin believed that Petitioner had the authority to fire her. (Vol. III, Ruffin, p. 624).

75. During the Spring of 2004, Ms. Sorrell was speaking about her son, a sophomore at Duke University at the time, with a co-worker, Ms. Boone, in the office. Sorrell was excited that her son was coming home for spring break. Petitioner interjected himself into the conversation and stated that Sorrell’s son was probably on cocaine. Ms. Sorrell did not take the comment as a joke, but instead was very upset by this comment. Sorrell was a single parent for over sixteen years. Both she and her son had worked diligently for him to be a student at Duke University. She did not speak with Petitioner about his comment because she felt it would not

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have done any good. Sorrell simply went back into her office. (Vol. III, Sorrell, pp. 579, 590-91; Res. Exh. 3, p. 719).

76. In addition to the comment that Petitioner made to Ms. Sorrell about her son, and the comment Petitioner made about Stafford going to the doctor with her son, Petitioner has made comments about Ms. Melvin’s children. (Vol. III, Sorrell, p. 580; Res. Exh. 3, p. 729).

77. Petitioner threatened to fire Ms. Sorrell because she did not want to leave her paralegal job to take the customer service position that he wanted her to take. She believed he was serious about firing her. (Vol. III, Sorrell, pp. 583).

78. Petitioner threatened to fire Ms. Sorrell another time for adjusting the HVAC thermostat. She did not believe he was joking because of the tone of his voice at the time and his character trait to be controlling. She did not tell any one about the incidence because she believed he would have to have more than this one incident to fire her. (Vol. III, Sorrell, pp. 580-81, 585; Res. Exh. 3, p. 719).

79. In the section of the Davis Report entitled “Interaction with Staff,” Mr. Davis summarized that the Child Support Office employees he interviewed were unanimous in characterizing Petitioner’s behavior toward them as demeaning, abusive, disrespectful and rude. Davis wrote that their collective impression was that Petitioner did not like to be challenged in any way and that if he was questioned about policy or procedure, his response was often hostile and intimidating. (Res. Exh. 2, p. 0234).

80. In response to this statement Petitioner testified that he was a supervisor and he did not see why anybody had to question his authority. Petitioner believed that if he told the employees he supervised what the policy was, they should follow it unquestioningly. (Vol. VI, Petitioner, p. 1075).

81. Petitioner testified that he believed his staff was disgruntled, that complaints made by staff to Ms. Bradshaw were not legitimate, and that the complaints were based on innuendo, false facts and misheard statements. Petitioner testified that he had had to live with disgruntled employees since 1997 so that he was familiar with “… what the staff would do and how the staff operated.” Petitioner did not think Respondent’s employees should have complained about him to Bradshaw. (Vol. VI, Petitioner, pp. 1076-77).

82. In April 1997, Jerry Hobbs, who was Respondent’s Manager and Petitioner’s supervisor, was considering terminating Petitioner’s employment. (Vol. VI, Petitioner, pp. 983, 989; Res. Exh. 34).

83. Among the reasons cited by Mr. Hobbs for the proposed disciplinary action were that Petitioner had “…pursued a management style that involved degrading remarks about employees in [Lee’s] department which either led to or materially contributed to a major morale breakdown in your department. Investigations to date reveal that employees have been degraded in the presence of others by your reference to them as idiots, stupid, dodo birds, and damn woman. There is, in addition, evidence that you have made one or more statements aloud during judicial proceedings in which your department was involved that male fathers involved in child

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support proceedings would have gotten out cheaper if they had kept their pants up. They would only have wet pants if they had and not a baby to support.” (Vol. VI, Petitioner, pp. 990-91; Res. Exh. 34).

84. Petitioner was not terminated from employment in 1997, but was, instead, suspended for two weeks. (Vol. VI, Petitioner, p. 996).

85. Upon his return, Petitioner was placed on probation. Among other things, Petitioner was directed to make a monthly report to the County Manager regarding employee morale and to personally apologize to each staff member in the Child Support Office. (Vol. VI, Petitioner, p. 997; Vol. XI, Petitioner, pp. 2187-89).

86. At the time of the pre-dismissal conference in January 2005 with Ms. Bradshaw, Petitioner knew the nature of the complaints Amos was referring to in her report because they were the same types of complaints that he had been hearing since 1995. Petitioner’s testimony in this case was, “It’s the same complaint” that he has been hearing since that time. Specifically, these are the same types of complaints that the County Manager suspended Petitioner for in April 1997, and for which he was required to make a monthly report regarding employee morale and personally apologize to his employees; and the same type of complaints that Larry Crandell described in his written warning to Petitioner in October 1997. (Vol. XII, Petitioner, pp. 2234-40; Res. Exhs. 34, 35, and 36).

87. After the Child Support Office was transferred into the Department of Social Services in July 1997, Petitioner was placed under the supervision of Larry Crandell, the Director of the Department of Social Services. Mr. Crandell also placed Petitioner under probation. Crandell talked with Petitioner about developing a team approach in the Child Support Office that would ease the tension in the office. Crandell directed Petitioner to provide his rationale to the staff for his decisions and not continue a “just because I say so” attitude. In October 1997 Crandell gave Petitioner a written warning because he still was not communicating effectively with his staff or the public and extended his probationary period as an employee of DSS for another three months. (Vol. VI, Petitioner, pp. 997-1001).

88. Although Petitioner testified that he had had to live with disgruntled employees since 1997, when asked during this hearing about the complaints his employees had made to Ms. Bradshaw that had been the subject of conversation between him and Bradshaw, Petitioner was only able to recount five complaints between 1997 and November 2004. (Vol. VI, Petitioner, pp. 1084-94).

89. Moreover, the only employee who Petitioner testified was insubordinate to him was Melba Boyette. (Vol. XI, Petitioner, pp. 2174-75).

90. Ms. Bradshaw was not made aware of the facts that occurred in 1997 through the investigation and they were not considered by her in her decision. (Res. Exh. 2; Res. Exh. 32; Res. Exh. 50).

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F. Termination Procedure

1. On January 7, 2005, Ms. Bradshaw wrote Petitioner advising him of a meeting she wanted to have with him on January 10, 2005. The letter indicated that she had received all anticipated reports resulting from the review and wanted to discuss the findings with him. (Vol. VII, Bradshaw, p. 1266; Res. Exh. 51, Tab 5).

2. On January 10, 2005, Ms. Bradshaw met with Petitioner for about thirty minutes. At the meeting, Bradshaw delivered to him a Notice of Pre-Dismissal Conference. (Vol. VII, Bradshaw, p. 1267; Res. Exh. 33, Res. Exh. 51, Tab 6).

3. Ms. Bradshaw held a pre-dismissal conference with Petitioner on January 11, 2005. At the meeting, Bradshaw gave Petitioner a Notice of Proposed Dismissal for Unacceptable Personal Conduct dated January 11, 2005. (Res. Exh. 51, Tab. 9).

4. The pre-dismissal conference began around 4:00 p.m. and lasted about three hours. (Vol. VII, Bradshaw, pp. 1270-71; Res. Exh. 45).

5. At the pre-dismissal conference, Ms. Bradshaw went through the entire content of the Notice of Proposed Dismissal and all of the four appendices to the letter. Specifically, Bradshaw went through the letter from Corinne Railey dated November 23, 2004 (Appendix A), Judge Thagard’s letter to Petitioner dated November 18, 2004 (Appendix B), the Davis Report (Appendix C), and the Amos Report (Appendix D). (Vol. VII, Bradshaw, pp. 1270, 1273).

6. Ms. Bradshaw went over the Beth Amos Report with Petitioner in detail during the pre-dismissal conference. In that report, Amos stated that she interviewed every single one of the employees Petitioner supervised and wrote in her report that, “All but two employees stated that Petitioner made rude and humiliating comments to staff members as well as to clients.” (Vol. VII, Bradshaw, pp. 1270, 1273; Res. Exh. 32).

7. Petitioner believes that Beth Amos would not make a false report and would write what she was told by the employees in the Child Support Office. When he read the Amos report, he knew what Amos was referencing because he had heard these types of complaints since he began work at the Office. The complaints have continued for the last ten years and they are the very same type complaints. Among other things, this complaint involved the way Petitioner treated employees. (Vol. VI, Petitioner, pp. 978-982).

8. The majority of the conference was spent going over the Davis Report. Petitioner asked Ms. Bradshaw to read the report to him section by section. Bradshaw did so, stopping at the end of each section to allow Petitioner to respond. (Vol. VI, Petitioner, p. 970; Vol. VII, Bradshaw, p. 1273).

9. Ms. Bradshaw and Petitioner discussed Chief Judge Thagard’s letter to Petitioner dated November 18, 2004 which describes Petitioner’s disruptive behavior in court on October 20, 2004. The letter and the incident are discussed at pages 2-3 (SC 232-33) in the Davis Report in the section entitled Inappropriate Conduct in Court. Prior to the pre-dismissal conference, Petitioner went to the court house and pulled the tape of court proceedings on October 20, 2004

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so he could listen to what was said in court that day. Petitioner denied that he had been disrespectful to Chief Judge Thagard and told Bradshaw that since receiving Chief Judge Thagard’s letter, he had written Chief Judge Thagard. Petitioner told Bradshaw that if he had done something so egregious he didn’t understand why Chief Judge Thagard did not call him back into chambers to tell him. Chief Judge Thagard had called Railey back to chambers and within a day, Railey had told Petitioner of Chief Judge Thagard’s concerns and his warning that he would hold Petitioner in contempt if it occurred again, and that Petitioner had chuckled when he heard the warning. (Vol. VII, Bradshaw, pp. 1283-84, 1288; Vol. X, Bradshaw, p. 1789; Res. Exhs. 2 and 45; Pet. Exh. 21).

10. Ms. Bradshaw and Petitioner discussed the November 2, 2004 incident in which Judge Seaton had reprimanded Petitioner for disrupting court. This incident is described at page 3 (SC 233) of the Davis Report in the section entitled Inappropriate Conduct in Court as having occurred on November 2, 2004. Petitioner told Bradshaw that Judge Seaton had said, “Mr. Lee, I’m hearing more from you than the client.” (Vol. VII, Bradshaw, p. 1283; Res. Exh. 45).

11. Ms. Bradshaw and Petitioner discussed the concern detailed at page 3 (SC 233) in the Davis Report in the section entitled “Inappropriate Conduct in Court” about the way in which Petitioner responded to the judge’s ruling allowing the prisoner who needed an MRI to be released from custody. Petitioner recalled the incident, recalled that Judge Seaton was on the bench and that he had indeed questioned Ms. Railey about the prisoner being released. Petitioner recalled that he had told Railey that if there were going to be a change that he should be notified. (Vol. VII, Bradshaw, p. 1281).

12. Ms. Bradshaw and Petitioner discussed his interactions with his staff regarding Judge Jones. The interaction is described at page 4 (SC 234) of the Davis Report in the section entitled Inappropriate Conduct in Court. Petitioner admitted he had a staff meeting during which he told his staff not to place cases on Judge Jones’ calendar other than those which would be carryovers from previous sessions. Petitioner told Bradshaw that the staff’s having expressed concern about this instruction to Davis was a clear example of them not accepting his right to say when to put cases on the calendar and that type of resistance had caused 99% of the turmoil in his office. The Davis Report states at p. 4 that Petitioner threatened to fire them if they did put a case on Judge Jones calendar. Petitioner did not respond to this allegation. (Vol. VII, Bradshaw, pp. 1284, 1290; Res. Exh. 45, pp. 1062-63; Res. Exh. 2, p. 4).

13. Right after Ms. Bradshaw read the section of the Davis Report entitled Inappropriate Conduct in Court on pages 2-4 (SC 232-34), Petitioner denied the assertion at the top of page 4 of the Davis Report that “he laughs in court at the judges’ rulings.” Petitioner stated that he may laugh after court about decisions that judges had made, but never during court. (Vol. VII, Bradshaw, p. 1289; Res. Exh. 2, p. 4; Res. Exh. 45).

14. At the end of the section of the Davis Report entitled, Inappropriate Conduct in Court, Mr. Davis wrote that, “These illustrations support employees’ contentions that Petitioner’s conduct is often abusive, insensitive, and unprofessional.” Right after Ms. Bradshaw read that sentence to Petitioner, he responded that it was true, that he had to be insensitive and abusive, and that he did not consider his actions to be unprofessional. Vol. VII, Bradshaw, p. 1292; Res. Exh. 2, p. 4; Res. Exh. 45, p. 1063).

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15. In reference to the allegation in that same section of the Davis Report that Petitioner had made inappropriate comments to clients of the Office in court, Petitioner told Ms. Bradshaw that he had to be aggressive during pre-court negotiations. (Vol. VII, Bradshaw, p. 1291; Res. Exh. 2, p. 4; Res. Exh. 45).

16. It is not necessary to make comments such as Petitioner made to clients or absent parents to collect child support money. (Vol. III, Stafford, pp.468-69).

17. Inappropriate comments cause friction with people with whom you are trying to work. (Vol. III, Stafford, pp. 469-70).

18. The average monthly purge collection in 2004, while Petitioner was office manager, was $20,505.62. (Vol. III, Stafford, p.471).

19. The average monthly purge collection in 2005, after Petitioner was terminated, was $30,484.68. (Vol. III, Stafford, p. 471).

20. Pages 4-5 (SC 234-35) of the Davis Report contain a section entitled, Interaction with Staff. That section contains a discussion of Petitioner having told an employee to “call Jenny Craig” in response to her question about getting her desk chair fixed. After Ms. Bradshaw read that section to Petitioner, Petitioner replied that he had made that statement to Geraldine Boone in a “fun session.” (Vol. VII, p. 1291; Res. Exh. 2, pp. 4-5; Res. Exh. 45, p. 1063).

21. Petitioner denied making the comment reported in the same section of the Davis Report that one of his employees wanted to accompany her son to his college physical in order to “check out the size of his penis.” (Vol. VII; Bradshaw, p. 1291; Res. Exh. 2, pp. 4-5; Res. Exh. 45, p. 1063).

22. The Davis Report states at page 5 (SC 235), that Petitioner talks about employees “behind their backs” to other employees. The report states that Petitioner characterized one of the employee’s husband (Wendy Thornton’s husband) as a “druggie” and a “crackhead.” When Mr. Davis interviewed Petitioner, Petitioner used similar language and called the individual a “crackhead” and a “dope dealer.” In response to this allegation, Petitioner told Ms. Bradshaw that he had talked about Wendy Thornton’s husband being a crackhead and that it is sometimes unavoidable to make a statement about an employee’s personal situation – such as when talking with a supervisor about an employees’ performance. (Vol. III, Davis, pp. 657-58; Vol. VII, Bradshaw, p. 1294; Res. Exh. 2, p. 5; Res. Exh. 45, p. 1063).

23. During the pre-dismissal conference, Ms. Bradshaw discussed with Petitioner the comments that are attributed to him on pages 4-5 (SC 234-35) of the Davis Report. Bradshaw spoke with Petitioner about the comment he reportedly made to a staff member that the solution to her broken chair was to call Jenny Craig and the comment he reportedly made about Kay Stafford’s purported motivation for wanting to attend her son’s college physical. Bradshaw also discussed with Petitioner the comment he reportedly made comparing Monica Ruffin to a toolbox. (Vol. X, Bradshaw, p. 1803).

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24. Ms. Bradshaw and Petitioner discussed the paternity testing incident involving the foster child D. T. on November 4, 2004, which is detailed in the Davis Report at pages 5-7 (SC 0235-0237). Petitioner denied that he had been rude when he walked into the testing room and addressed the staff. Petitioner stated that he noticed that Wendy Thornton began crying, and said he didn’t know why she would be crying about the issue. Bradshaw and Petitioner discussed the authorization document that Devane-Hayes had signed, and Petitioner stated that she had forged the document. Petitioner denied that he was aware that anyone ever signed paternity testing forms in his absence. Petitioner told Bradshaw that the reason he wanted to review all foster child cases prior to authorizing testing was because of the Pheon Beal letter (Res. Exh. 48). Petitioner told Bradshaw that he believed the letter prevented the Child Support Office from using its genetic testing contract to perform the kind of paternity testing that was being conducted on November 4, 2004. Bradshaw explained that the letter did not prohibit the contracts from being used for the purpose of establishing paternity so that DSS could recoup federal funds being paid on behalf of foster children in the custody of DSS. (Vol. VII, Bradshaw, pp. 1274-76, 1295; Res. Exhs. 2, pp. 235-37; 45, pp. 1061, 1064).

25. Ms. Bradshaw and Petitioner discussed Wendy Thornton crying on November 4, 2004. Petitioner said he assumed it was because he had told Ms. Railey to dismiss the Parker case on November 3, 2004. Petitioner told Bradshaw that Wendy Thornton had asked him why he had it dismissed and that he had replied, “It’s a new way of doing business.” The two discussed Thornton’s husband telephoning Bradshaw on November 4, 2004 complaining about Petitioner causing Wendy Thornton to be in tears. Petitioner told Bradshaw, “You know as well as I do he’s a known drug addict” and that for all he [Lee] knew, Thornton could have been home hallucinating when he called Bradshaw. The fact that Petitioner recalls Thornton crying indicates that Thornton’s husband was not hallucinating when he perceived that his wife was crying on November 4, 2004 about events at the office. (Vol. VII, Bradshaw, pp. 1285-86; Res. Exh. 2, p. 0251; Res. Exh. 45, p. 1062).

26. Right after discussing the comments about Mr. Thornton, Petitioner told Ms. Bradshaw he “can’t measure what hurts feelings”. (Vol. VII, Bradshaw, p. 1295; Res. Exh. 45, p. 1064).

27. When asked during the hearing of this case about Ms. Thornton crying, Petitioner admitted he had told Bradshaw during the pre-dismissal conference that he could not measure what hurt people’s feelings. (Vol. VI, Petitioner, pp. 1100-02).

28. Page 8 of the Davis Report (SC 238) contains a section entitled Recall of Arrest Orders. That section states, in part, that employees reported to Mr. Davis that Petitioner selectively withdraws Orders for Arrest of non-custodial parents who are in contempt of court for not paying court ordered child support. Davis reported that the staff perceives that Petitioner withdraws the order for non-legitimate reasons and that one employee had stated that Petitioner’s decision in some cases not to have the deputy sheriff arrest the person may have been legitimate, but that Petitioner did not have the authority to recall an arrest warrant issued by the court. The report states that Petitioner intercedes on a case by case basis. After Ms. Bradshaw read that section of the Davis Report to Petitioner, Petitioner admitted that he had recalled arrest orders and that had been documented. (Vol. VII, Bradshaw, pp. 1296-1297; Res. Exh. 2, p. 8; Res. Exh. 45, p. 1064).

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29. At this point in the pre-dismissal conference, Petitioner volunteered that he had never changed a purge order, even though this section of the Davis Report was discussing the recall of arrest orders. Prior to January 11, 2005, the last discussion Ms. Bradshaw had with Petitioner about his changing purge orders was in April 2003 when Chief Judge Thagard met with Petitioner and DSS attorney Ben Warrick and directed Petitioner not to continue changing purge orders. Petitioner acknowledged that meeting and that direction from Chief Judge Thagard in his testimony. (Vol. VII, Bradshaw, pp. 1298-1300; Res. Exhs. 24, 25, and 45, p. 1064).

30. Ms. Bradshaw and Petitioner discussed the section on page 9 (SC 239) of the Davis Report entitled “Policy and Rules Administration”. This section deals with the Erica Parker case which Ms. Railey believed was inappropriately dismissed by Petitioner. In that section, Mr. Davis writes that during his interview of Petitioner that Petitioner described the mother (Parker) as “… just a banana picker away from being on SSI herself.” Bradshaw went over the specific language in the report with Petitioner on January 11. Petitioner did not deny using the term “banana picker” in describing Parker to Davis. (Vol. IV, Davis, p. 734; Vol. VII, Bradshaw, p. 1281).

31. Ms. Bradshaw and Petitioner discussed statements that were attributed to him during court. The two were specifically discussing his interactions with clients of the agency that are detailed at page 10 in the Davis Report (SC 0240) under the section entitled “Client Relations and Client Complaints.” Petitioner responded that the staff was confused – that the statements were made during negotiations prior to court (pre-court) and not when court was in session. Petitioner admitted he made the comments to clients that are attributed to him in the Davis Report. (Vol. VII, Bradshaw, pp. 1278-79; Res. Exh. 45).

32. In the section of the Davis Report entitled, “Client Relations and Client Complaints,” Mr. Davis stated that employees told him that they have personally heard Petitioner make comments to clients such as “I’m not the one who slept with him,” or “Who else have you slept with?” or “You laid down with him, I didn’t.” Davis wrote that one employee reported that he told a non-custodial parent, “You’re a drunk!” (Res. Exh. 2, p. 10).

33. After Ms. Bradshaw read the section entitled, “Client Relations and Client Complaints to Petitioner,” Petitioner denied making all of the comments except he admitted he could have made the comment, “Who else have you slept with?” to clients. (Vol. VII, Bradshaw, pp. 1301-02; Res. Exh. 45, p. 1065).

34. At the end of the pre-dismissal conference, after Ms. Bradshaw had read the entire Davis Report to Petitioner and Petitioner had responded to every allegation in it, Petitioner stated to Bradshaw, that “If you take what Steve Davis says in the report, then it would lead him [Lee] to think that he was pretty gruesome if he did say so himself.” (Vol. VII, Bradshaw, p. 1302; Res. Exh. 45, p. 1065).

35. Petitioner agreed in his testimony that if the Davis Report regarding Petitioner’s conduct related to judges, staff and clients of the Office is true, then there would be just cause for Ms. Bradshaw to have disciplined him for unacceptable personal conduct. (Vol. VI, Petitioner, p. 1102).

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36. At his pre-dismissal conference with Ms. Bradshaw, Petitioner told her that if she took everything in the Davis Report as true, that his conduct would warrant termination. (Vol. XI, Petitioner, p. 2242).

37. Ms. Bradshaw went over each charge with Petitioner and Petitioner gave explanations for the actions he had taken. (Vol. VI, Petitioner, p. 970).

38. Based on the way Petitioner responded to each section of the Davis Report, Ms. Bradshaw was convinced he understood the context of every comment and action attributed to him. (Vol. VII, Bradshaw, p. 1303).

39. When Ms. Bradshaw discussed the Davis Report with Petitioner at the pre-dismissal conference, Petitioner understood that the conduct he was reported to have engaged in with staff and clients occurred during negotiations prior to court and took place over an extended period of time rather than on one particular date. (Vol. XII, Petitioner, pp. 2232-34).

40. Several times during the pre-dismissal conference, Petitioner referred to the November 12, 2004 meeting with Ms. Bradshaw and apologized for his behavior during that meeting. Toward the end of the pre-dismissal conference, Petitioner told Bradshaw that if there were anything for which he should be fired, it would be that Petitioner said he had been out of control and spoke before thinking. (Vol. VII, Bradshaw, p. 1283; Res. Exh. 45).

41. Before leaving the conference, Petitioner referred again to the meeting on November 12, 2004 and said, “I apologize to you for being unprofessional as recognized even by Petitioner”. (Vol. VII, Bradshaw, p. 1302; Res. Exh. 45, p. 1065).

42. Petitioner stated that he wanted to do a written answer to each one of the charges in the Davis Report and that he intended to do so. (Vol. VI, Petitioner, p. 970-71).

43. Petitioner had some materials at home that he could have used to put the response together. After he was terminated from his position, Petitioner did not prepare the written response. (Vol. VI, Petitioner, p. 972).

44. Petitioner had an opportunity to provide a written answer at Step 1 and Step 2 of the local grievance procedure that preceded the filing of his contested case petition, but did not do so. (Vol. VI, Petitioner, p. 972-74).

45. After the pre-dismissal conference on January 11, 2005, Ms. Bradshaw spent all day on January 12, 2005 reviewing the Davis and Amos reports and reflecting on them as well as what had transpired during the pre-dismissal conference with Petitioner. She reviewed all of the responses that Petitioner had made during the conference. (Vol. VII, Bradshaw, p. 1303).

46. At that conclusion of that review, Ms. Bradshaw decided that the appropriate course of action was to dismiss Petitioner from employment. (Vol. VII, Bradshaw, p. 1304).

47. Ms. Bradshaw concluded and the undersigned finds that the behaviors set forth in the Davis Report and Petitioner’s admission of some of those types of behaviors demonstrated, that Petitioner had engaged in conduct unbecoming an employee of the Department of Social

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Services and conduct for which no employee should expect to receive a warning or other disciplinary action. (Vol. VII, Bradshaw, p. 1304).

48. The decision to dismiss Petitioner from employment came after Ms. Bradshaw carefully reviewed each of the four different types of disciplinary action – written warning, suspension without pay, demotion and dismissal. Bradshaw concluded that dismissal was the only proper discipline because Petitioner believed that comments that had been documented in the report and comments that he had admitted to in the pre-disciplinary conference were appropriate and that he had stated he “couldn’t measure what hurt feelings.” (Vol. VII, Bradshaw, p. 1304).

49. Because Petitioner thought these comments and behaviors were appropriate was reason to believe the behaviors would continue if Petitioner was returned to the Office in his management position or any other position. Ms. Bradshaw believed that Petitioner’s inappropriate behaviors would continue and would continue to damage DSS’s relationship with the court system and judges. Bradshaw believed Petitioner’s behavior would impact the effectiveness of the Office’s procedures, collections, case activities and outcomes for the Office’s clients. (Vol. VII, Bradshaw, p. 1305).

50. Ms. Bradshaw believed that she could not risk allowing Petitioner to come back to the Office and interact with staff. The behaviors and actions found in the Davis Report and the behaviors and comments that Petitioner admitted to and that he believed, in certain circumstances, were appropriate, were not, in fact, appropriate. (Vol. VII, Bradshaw, p. 1305).

51. Ms. Bradshaw disagreed with Petitioner that any of the behaviors and comments that were documented, or that he admitted to making, were appropriate. (Vol. VII, Bradshaw, p. 1305).

52. Ms. Bradshaw does not believe it would have been inappropriate for Petitioner to turn around and talk to a client in a quiet voice during court. However, the day that Judge Seaton had to reprimand Petitioner more than once, Petitioner was speaking in such a loud voice as to disrupt court. (Vol. X, Bradshaw, p. 1769).

53. Ms. Bradshaw believes that it would not be appropriate for a supervisor in her office to toss his pad of paper onto counsel table, cross his arms and sit back just looking at the judge after a judge made a ruling that he did not agree with. During the pre-dismissal conference, Petitioner admitted to Bradshaw that he had done this during court sessions with Judge Seaton in November, 2004. (Vol. VII, Bradshaw, p. 1309; Vol. X, p. 1770).

54. Ms. Bradshaw believes that it would not be appropriate for a supervisor to “joke” with female employees ( in the way that Petitioner admits he did) that the way to fix their broken office chair would be to call Jenny Craig. (Vol. VII, Bradshaw, p. 1309; Res. Exh. 2, p. 0235).

55. Ms. Bradshaw believes it was inappropriate for Petitioner to refer to Wendy Thornton’s husband as a “crackhead” when discussing him with employees in the office. Bradshaw believes it is disrespectful, inappropriate, and unprofessional for a supervisor to discuss an employee’s personal life in that way in a work setting or even socially. Bradshaw

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believes that this type of comment from a supervisor is not appropriate even if they believe others are talking about that sort of thing or even if the employee has invited comments such as that. Bradshaw believes supervisors are role models for the agency and that their behaviors have to be appropriate and professional at all times. (Vol. VII, p. 1310).

56. For the same reasons, Ms. Bradshaw believes it would not be appropriate for a supervisor to discuss with his employees that the reason why one of their supervisors was going to their son’s college physical was to check out the size of her son’s penis. (Vol. VII, Bradshaw, pp. 1310-11).

57. Ms. Bradshaw believes a supervisor should refrain from making the sorts of comments described above even if others are making them, and should intervene if there are sessions going on where employees are discussing another employee’s personal matters simply because those types of comments can be offensive to the employee that is being discussed or the conversation may be offensive to someone else in the office. (Vol. VII, Bradshaw, pp. 1310-11).

58. Ms. Bradshaw believes it would not be appropriate for a supervisor in the Child Support Enforcement Office to threaten to fire an employee for putting new cases on a judge’s calendar other than just carryovers, as Petitioner admitted he had done. (Vol. VII, Bradshaw, pp. 1311-13).

59. Ms. Bradshaw believes it would not be appropriate for Petitioner to have made the comments attributed to him on p.10 of the Davis Report in the section entitled Client Relations and Client Complaints, and to which he admitted during his testimony in this contested case, specifically – “I’m not the one who slept with him.” “Who else have you slept with?” and “You laid down with him. I didn’t.” Comments such as these made by a supervisor in the Child Support Office to a client who is being uncooperative in identifying the parent of their child are inappropriate and degrading. Bradshaw believe it was unprofessional and disrespectful for Petitioner to use phrases like that with the individuals the office serves. Bradshaw recognizes that the Office must, at times, be aggressive but believes that at no time is it appropriate to make such disrespectful comments to clients. (Vol. VII, Bradshaw, pp. 1313-14).

60. On January 11, 2005, Ms. Bradshaw issued to Petitioner a Notice of Proposed Dismissal for Unacceptable Personal Conduct (Res. Exh. 51, Tab 9). On January 13, 2005, Bradshaw issued to Petitioner a Notice of Dismissal for Unacceptable Personal Conduct. Both Notices were delivered to Petitioner by hand delivery. Both Notices contained several appendices: the Davis Report; the Amos Report; Chief Judge Thagard’s letter to Petitioner dated November 18, 2004; and Corinne Railey’s letter to Bradshaw dated November 22, 2004. Appendix E to the Notice of Dismissal is the local Grievance Procedure and North Carolina statutes governing appeal of disciplinary action. (Vol. VII, Bradshaw, pp. 1305, 1317-18; Res. Exh. 50; Res. Exh. 51, Tab 10).

61. Ms. Bradshaw referred to the Davis Report and the Amos Report in both her Notice of Proposed Dismissal for Unacceptable Personal Conduct and the Notice of Dismissal. All of the material cited in the Notice of Dismissal is cited in the Notice of Proposed Dismissal

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and the grounds for dismissal are identical to the reasons for Proposed Dismissal. (Vol. X, Bradshaw, p. 1804; Res. Exh. 51, Tab 9; Res. Exh. 50).

62. The grounds for Petitioner’s dismissal from employment are set forth at pages 2-4 of the Notice of Dismissal (SC 1316-1318). Prior to setting forth the grounds in numerical order, Ms. Bradshaw wrote that the Davis Report and the Amos Report “… include substantial evidence clearly demonstrating a consistent pattern of unprofessional conduct on [Lee’s] part that is so inappropriate and disruptive that it interferes with a number of the agency’s basic duties and responsibilities. This troubling conduct on your part was reported consistently by numerous witnesses in private, individual interviews conducted as part of the investigation. The reports also provide substantial evidence that your misconduct has on numerous separate occasions directly and adversely affected individuals being served by the Child Support Unit, Child Support Program outcomes, and office staff.” (Res. Exh. 50, p. 1316).

63. The grounds stated for Petitioner’s dismissal are: 1) Petitioner’s pattern of unprofessional, disrespectful and argumentative conduct toward presiding judges in open court; 2) Petitioner’s pattern of unprofessional, disrespectful and insulting conduct toward clients in court and in the Child Support Unit’s offices; and 3) Petitioner’s inappropriate and highly unprofessional interactions with child support staff, including insults, intimidation, humiliation and disrespect, as described at pp. 4-5 of the Davis Report and at p. 2 in the Amos report. Ms. Bradshaw cited in support of each reason, specific sections of the Davis report. (Vol. VII, Bradshaw, pp. 1306-07; Res. Exh. 50, pp. 1316-18; Res. Exh. 2; Res. Exh. 32).

64. Ms. Bradshaw stated in support of the first ground for terminating Petitioner’s employment, the following: “The findings of the Personnel Consultant Report corroborated the following specific incidents of unprofessional, disrespectful conduct toward judges and others relating to court proceedings:

a. Your unprofessional and disrespectful toward Chief Judge Thagard in open court on October 20, 2004.

b. Your disruptive conduct during a court session on November 2, 2004 for which Judge Seaton orally reprimanded you twice.

c. Your challenge during open court of a presiding district court judge’s decision to call a defendant in earlier than initially scheduled so that the defendant could keep a medical appointment for a back injury. It was reported that when this defendant appeared in court, you remarked openly and indiscreetly that you were not told about the scheduling change and questioned the judge’s decision to release the defendant from jail.

d. An order issued by you, during a group staff meeting, not to schedule any cases on District Court Judge Carol Jones’ calendar after Judge Jones made a ruling with which you did not agree, an incident described independently by six employees.” (Res. Exh. 50, p. 1317).

65. In support of the second ground enumerated by Bradshaw in the Notice of Dismissal (Res. Exh. 50) for her dismissing Petitioner from employment, Bradshaw quoted from page 4 of the Davis Report dealing with Inappropriate Conduct in Court: “All of those interviewed who attend court reported that Petitioner’s interaction with staff and clients is also

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unprofessional. They reported that he is often rude and disrespectful to clients.” (Emphasis added in Notice of Dismissal). Bradshaw also cited page 10 of the Davis report where Davis addresses Client Relations and Client Complaints. The second enumerated ground is stated, “Interviews conducted as part of the Administrative Review [Amos Report Res. Exh. 32, p. 1] also indicated that you frequently behave rudely and inappropriately toward clients.” (Res. Exh. 50, pp. 1317-18).

66. In support of the third enumerated ground by Bradshaw in the Notice of Dismissal for her dismissing Petitioner from employment, was Petitioner’s “… inappropriate and highly unprofessional interactions with child support staff, including verbal abuse, intimidation, humiliation, and disrespect, as described more specifically in the Personnel Consultant [Davis] Report, pp. 4-5, and the Administrative Review [Amos] Report, p. 2.” (Res. Exh. 50, p. 1318).

67. At page 5 of the Notice of Dismissal, Ms. Bradshaw set forth her Reasons for Not Imposing Alternative Disciplinary Action. Bradshaw did not impose a warning, suspension without pay or demotion because all of those forms of discipline would bring Petitioner back into work with staff, clients and defendants, the court system and judges. Based on the number of employees interviewed, the two judges interviewed, the nature of the concerns raised by the employees and the judges, the nature of the concerns raised by the DSS attorney, the independence of the reports to the investigators due to interviews being conducted with only one person present, the independent findings in the two reports and Petitioner’s admissions during the pre-disciplinary conference, Bradshaw believed that the inappropriate conduct reported had occurred, that in some circumstances Petitioner believed it would be appropriate behavior and that Petitioner did not have an appreciation that the behavior was hurtful and harmful. (Vol. VII, Bradshaw, pp. 1315-17; Res. Exh. 50, p.1319).

68. Ms. Bradshaw believed that bringing Petitioner back into the workplace would mean continuing to subject people to the same or similar type of behaviors as had occurred. Bradshaw could not place Respondent at risk of any more harmful interactions with employees, judges, the court system and clients of the agency. (Vol. VII, Bradshaw, p. 1317).

69. The Notice of Dismissal contains as Appendix E, Article VIII of the Respondent Personnel Resolution. The Article is entitled, “Grievance Procedure, Discriminatory and Adverse Action Appeal.” The procedure provides that an employee may appeal directly to the Office of State Personnel if they believe they have been illegally discriminated against, or that they can use the grievance procedure outlined in Section 3 of Article VIII if they choose. It was stipulated that the document is authentic and that Steps One, Two and Three of Section 3 were duly and properly followed by DSS and Petitioner. (Vol. VII, Bradshaw, pp. 1320-21; Res. Exh. 50, pp. 1153-56; Res. Exh. 51, Tab 27; Res. Exh. 58).

70. Step Three of the internal grievance procedure provides for a consideration by the local board of the employee’s department. Res. Exh. 51 contains the case data that was presented to the Respondent pursuant to Step Three. Res. Ex. 52 is the advisory decision issued by the Board to Ms. Bradshaw on April 15, 2005. Bradshaw issued the Department Head decision required by Step Three on April 22, 2005. (Vol. VII, Bradshaw, p. 1344; Vol. VIII, Bradshaw, pp. 1371-72; Res. Exh. 50, p. 1154; Res. Exh. 51, Tab 38; Res. Exh. 52, Res. Exh. 61).

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71. Following the conclusion of Step Three, an employee is entitled, pursuant to Step Four of the Respondent internal grievance procedure, to file a grievance with the Respondent Commissioners and have it heard by the Commissioners. The procedure requires that the Department Head must produce evidence to justify the actions taken regarding the employee and that the employee must be given the right at the hearing to examine all the evidence and to cross-examine adverse witnesses. If a hearing had taken place, it was Ms. Bradshaw’s intent to produce as witnesses all of the witnesses identified in the Prehearing Statement filed by DSS in this contested case. Bradshaw would have submitted as further evidence everything contained in Res. Exh. 51 plus her Step Three decision contained in Res. Exh. 61. (Vol. VIII, Bradshaw, p. 1369; Res. Exh. 50, p. 1155; Res. Exh. 51, Tab 10).

72. Petitioner expressly waived all of the Step Four proceedings described in the Respondent Personnel Resolution and waived the right to claim that he was deprived of due process or that any of his other interests or rights were otherwise prejudiced as a result of his waiver of the Step Four proceedings or his execution of the Stipulation contained in Res. Exh. 58. (Vol. VIII, Bradshaw, pp. 1324-27).

73. Pursuant to and consistent with the stipulation of the parties, on May 26, 2005 Ms. Bradshaw issued the Department Head’s decision called for by Article VIII, Section 3, Step Four of the Respondent Personnel Resolution (“Step Four decision”) affirming her decision to dismiss Petitioner for the reasons set forth in her Step Three decision. See Res. Exh. 61. (Vol. VIII, Bradshaw, pp. 1357, 1370; Res. Exh. 58, p. 3, ¶ 4; Res. Exh. 59; Res. Exh. 61).

74. Pursuant to and consistent with the stipulation of the parties, on May 26, 2005 Ms. Bradshaw transmitted the Step Four decision to the State Personnel Director. (Vol. VIII, Bradshaw, p. 1370; Res. Exh. 60).

75. Following receipt of the Step Four decision, the Office of State Personnel confirmed to the parties to this contested case that it does not conduct investigations or contested case hearings and that Petitioner’s remedy, should he wish to appeal further, was to file a petition for a contested case hearing with the Office of Administrative Hearings. (Vol. VIII, Bradshaw, p. 1372; Res. Exh. 62).

76. Res. Exh. 65 and Res. Exh. 66 are Petitioner’s first and second discovery requests to Respondents. Both discovery requests contain requests for production of documents. Petitioner never requested any of DSS’s case files as part of his discovery in this contested case. (Vol. VIII, Bradshaw, p. 1374; Res. Exh. 65; Res. Exh. 66).

77. Res. Exh. 3 is Stephen Davis’ compilation of interview notes and materials considered by him in preparing his report which was received into evidence as Res. Exh. 2. The notebook was produced to Petitioner in discovery in October 2005. (Vol. VIII, Bradshaw, pp. 1375-76).

78. Both Mr. Davis and Ms. Bradshaw were deposed by Petitioner’s counsel in this case several months after Respondent listed its witnesses in its Prehearing Statement and after producing notes of interviews Davis had conducted with employees of the Child Support Office. (Vol. VIII, Bradshaw, p. 1376).

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79. Petitioner took no depositions of any employees of the Child Support Office. (Vol. VIII, Bradshaw, pp. 1374-76).

VI. CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, the undersigned makes the following

Conclusions of Law:

1. Petitioner was dismissed for a pervasive pattern of unprofessional, disrespectful and argumentative conduct toward judges in open court and unprofessional, disrespectful and insulting conduct toward clients of the Child Support Office in court and in the Child Support Office; and his inappropriate and unprofessional interactions with child support staff, including verbal abuse, intimidation, humiliation and disrespect.

2. The Notice of Proposed Dismissal for Unacceptable Personal Conduct (“Notice of Proposed Dismissal, Res. Exh. 51, Tab 9) and Notice of Dismissal for Unacceptable Personal Conduct (“Notice of Dismissal”, Res. Exh. 51, Tab 10) incorporated by reference specific portions of the Amos Report and the Davis Report.

3. Every statement to and action towards judges, clients of the Office, and staff that is attributed to Petitioner in the Amos Report and Davis Report and incorporated into the Notice of Proposed Dismissal and Notice of Dismissal occurred and are supported by notes Davis took of interviews he conducted as part of his investigation of Petitioner.

4. Every statement to and action towards judges, clients of the Office, and staff that is attributed to Petitioner in the Amos Report and Davis Report and incorporated into the Notice of Proposed Dismissal and Notice of Dismissal occurred and are supported by the testimony of numerous, credible witnesses who were sequestered during the hearing of this contested case. Many of the statements and actions are admitted by Petitioner.

5. Petitioner exhibited a pervasive pattern of unprofessional, disrespectful and argumentative conduct toward presiding judges in open court, specifically as described in the Davis Report and in the Notice of Proposed Dismissal and Notice of Dismissal. At a minimum, three Judges including the Chief District Court Judge, complained of Petitioner’s courtroom behavior and demeanor. If the complaint by these judges had been isolated, Petitioner’s explanation or justification for his in-court conduct might have been excusable. However, the totality of the judges’ expressed complaints indicated a serious problem for the courts in their administration of justice, and without further findings or conclusions, in and of itself, would constitute conduct justifying dismissal.

6. Petitioner’s conduct intimidated public employees, specifically the enforcement agents employed by the Child Support Office, by threatening to dismiss them from employment for placing new cases on District Court Judge Jones’ calendar.

7. Petitioner exhibited a pervasive pattern of unprofessional, disrespectful and insulting conduct towards clients of the Child Support Office, both in court and in the Child

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Support Offices, as described in the Davis Report and in the Notice of Proposed Dismissal and Notice of Dismissal. The conduct occurred every week that Petitioner was in Child Support Court and every week in the office. Petitioner was given sufficient notice by precisely what conduct on his part was the basis of his proposed discharge.

8. Petitioner engaged in inappropriate and highly unprofessional interactions with the employees he supervised, including verbal insults, intimidation, humiliation, and disrespect. Petitioner knew precisely what conduct was the basis of his proposed discharge.

9. Incidences of conduct attributed to Petitioner that are reported in the Amos Report and Davis Report and incorporated into the Notice of Proposed Dismissal and Notice of Dismissal and the specific enumerated instances of conduct set forth in both Notices did, in fact, occur and clearly constitute conduct unbecoming to a public employee that was detrimental to the Child Support Office and DSS and for which no reasonable person should expect to receive a prior warning, particularly an employee who had over 17 years of management experience. Under North Carolina law, this type of conduct is unacceptable personal conduct. See 26 NCAC 1I .2304(b)(1),(5).

10. Petitioner may well have believed that his blunt style was a characteristic of his managerial personality and was the proper execution of his authority, but, if so, he was mistaken because of his failure to heed the notice given to him in previous disciplinary actions that clearly put him on notice that this style was improper and unacceptable, and in light of judicial objections as to his in courtroom behavior, Petitioner did not heed these warnings to him. The unacceptable personal conduct for which Petitioner was dismissed was not a singular incident of unacceptable personal conduct because the pattern of statements and conduct toward judges and clients in open court and towards clients in the Child Support Office as well as the verbal insults, intimidation, humiliation, and disrespect towards staff reported by Davis, although not known to Bradshaw before November 2004, had been the subject of previously imposed disciplinary action by Respondent.

11. Dismissals for unacceptable personal conduct require (1) advance oral or written notice of the pre-disciplinary conference to the employee of the time, location, and the issue for which discipline is being considered. The amount of advance notice shall be as much as is practical under the circumstances; (2) a pre-dismissal conference; (3) oral or written notice of the recommendation for dismissal, including specific reasons for the proposed dismissal and a summary of the information supporting that recommendation. The employee shall have an opportunity to respond to the proposed dismissal action and to offer information or arguments in support of the employee’s position; (4) a review and consideration by management of the response of the employee following the pre-dismissal conference; and (5) communication in writing of the specific reasons for dismissal. See 25 NCAC 1I .2308(3).

12. Petitioner received a Notice of Pre-Dismissal Conference (Res. Exh. 51, Tab 6) and Notice of Proposed Dismissal for Unacceptable Personal Conduct (Res. Exh. 51, Tab 9) that complied with the requirements of law. The pre-dismissal conference was conducted as required by law. During the conference, Ms. Bradshaw explained in detail the specific reasons for the proposed dismissal and the information supporting the recommendation. Petitioner knew the context in which the incidents at issue arose and the people or groups of people involved.

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Petitioner was fully able to respond to the information supporting the proposed dismissal. Following the pre-dismissal conference, Ms. Bradshaw properly considered Petitioner’s responses prior to deciding to dismiss Petitioner from employment and properly considered alternative disciplinary action. The Notice of Dismissal for Unacceptable Personal Conduct (Res. Exh. 10) complied with the requirements of law.

13. Ms. Bradshaw properly determined that there was no reason to believe that Petitioner’s pattern of unacceptable personal conduct, intimidation of public employees, and inappropriate and highly unprofessional interactions with public employees would improve if he were permitted to continue his employment with the Office. Ms. Bradshaw properly determined that Petitioner’s behavior was so egregious that the risk of allowing such conduct to continue could cause significant disruption of work, jeopardize the agency’s ability to successfully process cases, place at risk DSS’s ability to serve its clients and accomplish the purpose of the Child Support Program, and place child support staff at risk for continued inappropriate, unprofessional and harmful interactions.

14. Ms. Bradshaw, in her position as Director of the Respondent Department of Social Services, had “just cause” to dismiss Petitioner from his position as Office Manager of the Respondent Child Support Office for unacceptable personal conduct.

15. All post termination procedures required by Respondent’s Personnel Resolution and North Carolina law were made available and properly conducted. Petitioner availed himself of all post-termination appeal procedures made available to him.

16. Petitioner was lawfully dismissed from his position as Office Manager of the Respondent Department of Social Services Child Support Office for unacceptable personal conduct in accordance with the requirements of Article 8 of Chapter 126 of the North Carolina General Statutes and 25 NCAC Subchapter 1I and received all protections afforded by the U.S. and North Carolina Constitutions.

DECISION

It is hereby recommended that the decision of the Director of the Department of Social Services to terminate the employment of Petitioner be UPHELD.

NOTICE AND ORDER

The State Personnel Commission will make the final decision in this contested case. It is required to give each party an opportunity to file exceptions to this decision and to present written arguments. N.C. Gen. Stat. § 150B-36(a).

Pursuant to N.C. Gen. Stat. § 150B-36(b), the State Personnel Commission is required to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

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This the 14 th day of June, 2007.

____________________________________Julian Mann, IIIChief Administrative Law Judge

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STATE OF NORTH CAROLINA · Web viewVolume Number Witness Affiliation Pages Volume I – August 30...

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